Citation Nr: 21070864 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-49 916 DATE: November 26, 2021 ORDER Service connection for hearing loss is dismissed. Service connection for a right knee disorder is dismissed. Service connection for a left knee disorder is dismissed. Service connection for a rectal abscess as secondary to hemorrhoids is dismissed. An evaluation greater than 20 percent for service-connected diabetes mellitus, type II, is dismissed. An earlier effective date, prior to November 13, 2017, for the award of service connection for diabetes mellitus, type II, is dismissed. An evaluation higher than 10 percent disabling for hepatitis A is denied. A total disability rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. In July 2020, the Veteran submitted a signed statement requesting to withdraw his claims for an evaluation greater than 20 percent for service-connected diabetes mellitus, type II; service connection for hearing loss; service connection for a right knee disorder; service connection for a left knee disorder; service connection for a rectal abscess as secondary to hemorrhoids; and an earlier effective date, prior to November 13, 2017, for the award of service connection for diabetes mellitus, type II. 2. Throughout the period on appeal, the weight of the evidence does not show the Veteran's hepatitis A manifested as symptoms of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 3. The Veteran's service-connected disabilities are of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience as of July 8, 2014. CONCLUSIONS OF LAW 1. The appeal of the claim for an evaluation greater than 20 percent for service-connected diabetes mellitus, type II, has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The appeal of the claim for service connection for hearing loss has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The appeal of the claim for service connection for a right knee disorder has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The appeal of the claim for service connection for a left knee disorder has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The appeal of the claim for service connection for a rectal abscess as secondary to hemorrhoids has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The appeal of the claim for an earlier effective date, prior to November 13, 2017, for the award of service connection for diabetes mellitus, type II, has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 7. The criteria for an evaluation in excess of 10 percent for hepatitis A have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7345. 8. The criteria for a TDIU have been met as of July 8, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970. These matters are on appeal from November 2014, March 2015, and June 2018 rating decisions. The issues of an evaluation higher than 10 percent disabling for hepatitis A and a TDIU were previously before the Board in June 2019. Service connection for hearing loss is dismissed. Service connection for a right knee disorder is dismissed. Service connection for a left knee disorder is dismissed. Service connection for a rectal abscess as secondary to hemorrhoids is dismissed. An evaluation greater than 20 percent for service-connected diabetes mellitus, type II, is dismissed. An earlier effective date, prior to November 13, 2017, for the award of service connection for diabetes mellitus, type II, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by their authorized representative. 38 C.F.R. § 20.204. In July 2020, the Veteran submitted a signed statement requesting to withdraw his claims for an evaluation greater than 20 percent for service-connected diabetes mellitus, type II; service connection for hearing loss; service connection for a right knee disorder; service connection for a left knee disorder; service connection for a rectal abscess as secondary to hemorrhoids; and an earlier effective date, prior to November 13, 2017, for the award of service connection for diabetes mellitus, type II. Accordingly, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. The Board does not have jurisdiction to review these issues, and dismissal is warranted. 1. An evaluation higher than 10 percent disabling for hepatitis A is denied. VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected viral hepatitis is currently rated under 38 C.F.R. § 4.114, DC 7345, chronic liver disease without cirrhosis. Under DC 7345, a noncompensable rating is assigned for an asymptomatic chronic liver condition. A 10 percent rating requires intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period. 38 C.F.R. § 4.114, DC 7345. A 20 percent rating requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id. A 60 percent rating requires daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A 100 percent rating requires near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. For purposes of evaluating conditions under DC 7345, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7345 Note (2). Turning to the evidence of record, a September 2014 VA examination is of record. The Veteran reported complaints of tiredness and no other complaints. The examiner noted no new changes or progress in the Veteran's liver condition and that the Veteran was not on any medication. Thus, continuous medication was not required to control the Veteran's liver condition. Intermittent fatigue was noted. The Veteran had not been diagnosed with hepatitis C. No incapacitating episodes were found to have occurred during the past 12 months. No signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis were found. No functional impact of the Veteran's condition was found. The examiner noted the Veteran had normal liver functions. The most recent VA examination is from August 2019. No current symptoms or treatment were found. Continuous medication was not required to control the Veteran's liver condition. No signs or symptoms attributable to chronic or infectious liver disease were found. The Veteran had not been diagnosed with hepatitis C. No incapacitating episodes were found to have occurred during the past 12 months. No signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis were found. No functional impact of the Veteran's condition was found. The Veteran's VA treatment records demonstrate the Veteran's history of hepatitis A with treatment. However, the records do not provide evidence of the Veteran's symptoms, including fatigue, occurring at daily intervals. Further, the VA treatment records do not demonstrate the Veteran experienced incapacitating episodes of symptoms at any point during the period on appeal. Following a review of the record, the Board finds the Veteran's symptoms of hepatitis A do not reach the level of overall severity consistent with the requirements of an increased disability rating more than 10 percent. The applicable evidence of record shows the Veteran has not experienced daily symptoms of fatigue, malaise, and anorexia (with or without weight loss or hepatomegaly), requiring dietary restriction or continuous medication. Additionally, the evidence of record does not show the Veteran experienced incapacitating episodes of symptoms related to his service-connected viral hepatitis, as defined in 38 C.F.R. § 4.114, DC 7345. Thus, evidence of increased hepatitis symptomatology has not been established, either through medical or lay evidence. Accordingly, the claim for an increased disability rating for Hepatitis A is denied, and the benefit of the doubt rule does not apply. See Gilbert, supra. 2. As of July 8, 2014, a TDIU due to service-connected disabilities is granted. Total disability meriting a 100-percent schedular rating exists "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability nonetheless may be assigned if a veteran is rendered unemployable because of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Although the Board must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). As part of this ultimate determination, VA is required to obtain a medical examination or opinion only when "necessary to make a decision on the claim." Id. (citing 38 U.S.C. § 5103A(d)(1)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effects of all disabilities. Id. A claim for TDIU is part and parcel of any increased rating claim when it is reasonably raised by the record, and here, as further detailed below, a TDIU is reasonably raised by the record. Thus, the period on appeal begins with the date of claim for increase ratings for the Veteran's service-connected PTSD and hepatitis A disabilities. Thus, a TDIU claim is inferred under Rice v. Shinseki, 22 Vet. App. 447 (2009) as of July 8, 2014, the date of claim. On January 20, 2015, the Veteran submitted a TDIU application. The Veteran's January 2015 VA Form 21-8940 shows he has a high school education. He worked from June 5, 1991, until November 1, 2012, which is also the date he last worked fulltime. The Veteran is service connected for PTSD, rated as 70 percent disabling from July 8, 2014; sleep apnea, rated as 50 percent disabling from July 8, 2014; bilateral flat feet with left foot degenerative arthritis, rated as 30 percent disabling from March 22, 2018; diabetes mellitus, type II, rated as 20 percent disabling from March 13, 2017; hepatitis A, rated as 10 percent disabling from March 26, 2012; tinnitus rated as 10 percent since July 8, 2014; and hypertension, rated as noncompensable from July 8, 2014. The percentage of these disabilities meet the requirements for schedular consideration for TDIU as of July 8, 2014 due to the Veteran's service-connected PTSD, sleep apnea, hepatitis A, tinnitus and hypertension. See 38 C.F.R. § 4.25. For the reasons detailed below, the Board finds a TDIU is warranted from July 8, 2014, forward. Regarding this, a September 2014 VA PTSD examiner found the Veteran's symptoms to include a depressed mood; anxiety; panic attacks; chronic sleep impairment; impairment of short- and long-term memory; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including a work or worklike setting; and suicidal ideation. In March 2016, Dr. H. S. found the Veteran's sleep apnea impacts his ability to work. The physician notes the Veteran's reported daytime sleepiness, even with the use of a CPAP machine, would interfere with a normal workday. Furthermore, on nights where he had not worn his CPAP due to PTSD-related symptoms, the Veteran would be exceptionally sleepy and fall asleep at work, which would make it difficult for him to concentrate and stay productive. The examiner further notes tiredness would worsen the Veteran's PTSD-related symptoms. A vocational expert in April 2018 found the Veteran would be unable to perform substantially gainful activity because of his service-connected PTSD and Hepatitis A. They found the Veteran is unable to sustain work because he is physically limited due to his service-connected conditions. They further note the Veteran is unable to interact with others on a sustained basis and would react in an inappropriate manner when instructed, confronted, or stressed, and even simple work tasks would be difficult to sustain. The vocational expert also notes the Veteran would not be able to meet attendance and production demands within a set schedule of 40 hours per week. The Board notes the vocational expert supports their conclusions with the medical evidence of record. The Board observes the negative VA opinions from August 2019 that found the Veteran could complete heavy work. However, the opinions do not discuss the medical evidence of record noting the Veteran's PTSD and sleep apnea symptoms have an impact on his ability to sustain employment. For example, as noted above, the Veteran has been found to experience significant symptoms such as chronic sleep impairment; impairment of short- and long-term memory; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including a work or worklike setting; and suicidal ideation. As such, the Board cannot find the opinions probative as they are mere conclusions without any supporting rationale. Accordingly based on the evidence of record, and resolving all doubt in favor of the Veteran, from July 8, 2014, forward, the Board finds his service-connected disabilities (PTSD, sleep apnea, hepatitis A, tinnitus and hypertension) precluded him from maintaining substantially gainful employment. See 38 U.S.C. § 5107 (b); Gilbert, supra. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.