Citation Nr: 21066463 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-37 708 DATE: November 1, 2021 ORDER The appeal regarding entitlement to service connection for eye floaters is dismissed. The appeal regarding entitlement to service connection for dry eye syndrome is dismissed. The appeal regarding entitlement to service connection for glaucoma is dismissed. The appeal regarding entitlement to service connection for pigment dispersion syndrome is dismissed. The appeal regarding entitlement to service connection for benign breast cyst post fine needle aspiration is dismissed. The appeal regarding entitlement to an initial rating higher than 30 percent for irritable bowel syndrome is dismissed. The appeal regarding entitlement to an initial rating higher than 10 percent for tinnitus is dismissed. The appeal regarding entitlement to an initial rating higher than 10 percent for left knee patellofemoral syndrome is dismissed. The appeal regarding entitlement to an initial rating higher than 10 percent for chronic allergic conjunctivitis is dismissed. The appeal regarding entitlement to an initial compensable rating higher for seborrheic dermatitis is dismissed. Service connection for a back disability is granted. An initial rating of 70 percent, but not more, for posttraumatic stress disorder (PTSD) is granted. As of September 1, 2020, a total disability rating based on individual unemployability (TDIU) due to PTSD is granted. As of September 1, 2020, special monthly compensation (SMC) at the (s) rate is granted. REMANDED A compensable initial rating for allergic rhinitis is remanded. An initial rating higher than 20 percent for left shoulder tendonitis and winged scapula with endochondroma is remanded. An initial rating higher than 10 percent for right knee patellofemoral syndrome and osteochondroma is remanded. FINDINGS OF FACT 1. At her February 2021 hearing, prior to the promulgation of a decision in the appeal, the appellant withdrew the issues of service connection for eye floaters, dry eye syndrome, glaucoma, pigment dispersion syndrome, and benign breast cyst post fine needle aspiration and increased initial ratings for irritable bowel syndrome, tinnitus, left knee patellofemoral syndrome, chronic allergic conjunctivitis, and seborrheic dermatitis. 2. The Veteran's back disability began during active service. 3. The Veteran's PTSD manifests as occupational and social impairment with deficiencies in most areas, due to symptoms such as near-constant debilitating anxiety and panic and difficulty in adapting to stressful circumstances (including interactions with coworkers and superiors). 4. The Veteran's PTSD alone has rendered her unable to obtain or retain substantially gainful employment. 5. As of September 1, 2020, the Veteran the Veteran had a single service-connected disability rated at 100 percent (TDIU based on PTSD alone) plus additional service-connected disabilities having a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for entitlement to service connection for eye floaters by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a claim for entitlement to service connection for dry eye syndrome by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a claim for entitlement to service connection for glaucoma by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a claim for entitlement to service connection for pigment dispersion syndrome by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of a claim for entitlement to service connection for benign breast cyst post fine needle aspiration by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of a claim for entitlement to an initial rating higher than 30 percent for irritable bowel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of a claim for entitlement to an initial rating higher than 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of a claim for entitlement to an initial rating higher than 10 percent for left knee patellofemoral syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of a claim for entitlement to an initial rating higher than 10 percent for chronic allergic conjunctivitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of a claim for entitlement to an initial compensable rating higher for seborrheic dermatitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 11. The criteria for service connection for back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for a disability rating of 70 percent, but not more, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 13. As of September 1, 2020, the criteria for a total disability rating based on individual unemployability (TDIU) due to service connected PTSD alone are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16(a). 14. As of September 1, 2020, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2012 to January 2016. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2016 and August 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in February 2021. A transcript is of record. Withdrawals During the February 2021 Board hearing, the Veteran and her representative explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal regarding entitlement to service connection for eye floaters, dry eye syndrome, glaucoma, pigment dispersion syndrome, and benign breast cyst post fine needle aspiration and increased initial ratings for irritable bowel syndrome, tinnitus, left knee patellofemoral syndrome, chronic allergic conjunctivitis, and seborrheic dermatitis. The undersigned clearly identified the withdrawn issues, and the Veteran and her representative affirmed that they were requesting a withdrawal as to those issues. See February 2021 Hearing Tr. at 2. The Veteran's full understanding of the consequences are shown as she was acting on the advice of her representative and did not seek to give testimony on the withdrawn issue. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Service Connection 1. Service connection for back disability The Veteran contends that her current back disability began in service. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As to a current disability, the Veteran was afforded a VA back conditions DBQ in August 2015. The examiner determined that the Veteran did not have a diagnosed disability related to her back. See August 2015 DBQ. However, the Veteran's recent private treatment records show ongoing physical therapy for low back pain. In her February 2021 testimony, the Veteran described her functional impairment as constant daily back pain that increased as the day progressed with increased pain and limitation of motion following sitting for twenty minutes of more. She used a stand-up desk at work and remained standing during the February 2021 hearing. The Veteran is competent to report pain and limitation of motion with use. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, her reports are consistent throughout the record and, indeed, are the focus of her physical therapy. The Veteran's back disability is manifested by pain and limitation of motion with prolonged sitting. Therefore, the Veteran has a current disability and the first Shedden element is met. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020). During service, the Veteran was seen for ongoing complaints of low back pain and back muscle spasms. Thus, the second Shedden element is met. Finally, the Veteran has provided lay evidence of her back symptoms continuing since their in-service onset to the present. This is supported by her service treatment records and post-service physical therapy records. Thus, the Board finds the Veteran's lay evidence competent, credible, and highly probative. The third Shedden element is met. Accordingly, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating 2. Increased rating for PTSD The Veteran was originally granted service connection for PTSD in the February 2016 rating decision on appeal. At that time, the disability was assigned a 50 percent rating effective January 2, 2016. In March 2016, she filed a claim for an increased rating that was denied in an August 2016 rating decision. As development for this increased rating claim resulted in new and material evidence within one year of the January 2016 rating decision, the Board finds that this claim is an appeal of the initial rating assigned. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms cause the level of impairment required for a disability rating of 70 percent, but did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA and private treatment records, the August 2015 disability benefits questionnaire (DBQ), the May 2016 DBQ, the Veteran's lay statements, and her February 2021 testimony show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, such as near-constant debilitating anxiety and panic and difficulty in adapting to stressful circumstances (including interactions with coworkers and superiors). She also has symptoms associated with a lower degree of impairment, including chronic sleep impairment, suspiciousness, disturbances of motivation and mood, flattened affect, and difficulty establishing and maintaining effective relationships. She described a close relationship with her current husband, but she otherwise avoided social interactions, sticking to the back rows at church and no social life. Social interactions would cause severe anxiety and panic. She had started a job as a psychologist with VA in September 2020, but was scheduled to leave that job on March 12, 2021. She stated that her supervisor was a former Marine and "speaks like a Marine," which induced flashbacks and intrusive memories of her service. This prevented her from effectively interacting with him. Additionally, she avoided speaking to patients, which was one of the primary duties of her position and one of her productivity metrics. At the time of her February 2021 hearing, she had yet met a client in person and so she had failed to do her job during her probationary period. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas and to this extent, the appeal is granted. The Board has also considered whether a higher rating (100 percent) is warranted, but the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Specifically, despite her social limitations, the Veteran has been shown to maintain a good relationship with her husband. Therefore, the criteria for a 100 percent rating are not met. Based on the above, the Veteran's PTSD warrants an increased schedular rating of 70 percent, but not more, and to that extent the appeal is granted. 3. TDIU The Board also has considered whether the Veteran's occupational impairment associated with PTSD alone has rendered the Veteran unemployable. Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). Generally, marginal employment shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16 (b). Alternately, marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16 (b). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Veteran's PTSD is rated 70 percent, therefore this disability alone meets the schedular requirements for PTSD. The record shows that the Veteran has worked in some capacity for most of the time since her separation. The record shows that she worked as a contractor performing chart reviews for 16 to 20 hours per month, earning $5500 over the course of six months from January 2016 to July 2016. VA treatment records from this period note that the Veteran was unemployed, but actively searching. She denied any need for employment resources as she planned to focus on her mental health recovery. She obtained a part-time job at a local healthcare system in July 2016 and withdrew her TDIU claim. In that position, she reported earning $40 per hour for sixteen hours a week. She testified that she had failed to meet their productivity standards, nevertheless remained in that position until August 2020. She stated that no accommodations had been made for her disability as she did not tell them until after a tornado came through, causing her to panic and lock herself in a bathroom instead of evacuating her patients. The Veteran's income in this position far exceeds the amount established by the U.S. Department of Commerce as the poverty threshold for one person in any of the years from 2016 to 202. 38 C.F.R. § 4.16; see also U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited October 27, 2021). Moreover, as this employment was through a large healthcare system and she testified that they were not aware of and did not make any accommodations for her disability in the years that she worked there, it is not shown to be a protected work environment. Therefore, this is not marginal employment and is evidence against a claim of TDIU through August 2020. Most recently, the Veteran started a job as a psychologist with VA in September 2020, but was scheduled to leave that job on March 12, 2021. As described above, she failed to perform the duties of this job and her employment was set to end before the completion of her probationary period. The Veteran did not provide her salary information for this position. Nevertheless, the Veteran has provided competent and credible evidence that she has essentially failed to perform this job due to her disability and as a result was dismissed during her probationary period. The Board acknowledges that the employment protection procedures in place for VA employees has effectively rendered her work during her unsuccessful probationary period a protected environment. Therefore, TDIU based solely on PTSD is warranted as of September 1, 2020. 4. Special monthly compensation (SMC) at the (s) rate SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). Pursuant to the Order above, the Board has awarded TDIU based on the Veteran's PTSD alone effective September 1, 2020, which is the first time that the Veteran has a single disability rated 100 percent. Additionally, the Veteran had additional service-connected disabilities independently ratable at a combined rating of more than 60 percent for this entire period. Accordingly, as both elements of entitlement to SMC at the (s) rate have been shown, the Board finds entitlement to SMC at the statutory housebound rate is granted as of September 1, 2020. REASONS FOR REMAND 1. A compensable initial rating for allergic rhinitis is remanded. At her February 2021 hearing, the Veteran provided testimony regarding her current symptoms of allergic rhinitis. While she reported congestion, she was unable to quantify this in terms consistent with the diagnostic criteria. She was last examined by VA for this disability in August 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her allergic rhinitis. 2. A rating higher than 20 percent for left shoulder tendonitis and winged scapula with endochondroma is remanded. While the record contains a contemporaneous August 2015 shoulder and arms condition disability benefits questionnaire (DBQ), the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Additionally, at her February 2021 hearing, the Veteran reported monthly flareups of left shoulder pain, particularly after physical therapy session, wherein she had a significant loss of range of motion in the left shoulder for about a week. During flareups, she alleged that she could not wash her hair and generally felt that she had to keep her left arm close to her body. These flareups were not considered by the August 2015 examiner and it is unclear if this was an oversight or a recent increase in symptoms. 3. An initial rating higher than 10 percent for right knee patellofemoral syndrome and osteochondroma is remanded. While the record contains a contemporaneous VA examination regarding the Veteran's right knee disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. Additionally, at her February 2021 hearing, the Veteran reported flare-ups. No flare-ups were noted in the August 2015 DBQ, so this suggests a worsening of symptoms associated with the Veteran's right knee disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected allergic rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Finally, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and her attorney with a supplemental statement of the case and allow them an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.