Citation Nr: 21071577 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-02 011 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 100 percent for disseminated strongyloides infection, prior to November 1, 2013, and a compensable rating thereafter, is denied. Entitlement to a separate rating of 10 percent, but no higher, for residual gastrointestinal symptoms is granted. Entitlement to a separate rating of 10 percent, but no higher, for residual weakness and fatigue symptoms is granted. Entitlement to a separate rating of 40 percent, but no higher, for residual urinary incontinence is granted. Entitlement to a separate rating of 30 percent, but no higher, for residual respiratory symptoms is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 1, 2014, is dismissed as moot. Entitlement to TDIU, from February 1, 2014, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate, from November 1, 2013 and prior to February 1, 2014, is granted. FINDINGS OF FACT 1. Prior to November 1, 2013, the Veteran was in receipt of the maximum schedular rating. From November 1, 2013, the Veteran does not have an active disseminated strongyloides infection. 2. The Veteran has residual gastrointestinal symptoms due to his disseminated strongyloides infection that are manifested by mild gastrointestinal disturbances and chronic constipation interrupted by diarrhea. 3. The Veteran has residual weakness and fatigue symptoms due to his disseminated strongyloides infection that are manifested by muscle and skeletal weakness, imbalance, and limitations in physical activities. 4. The Veteran has residual urinary incontinence due to his disseminated strongyloides infection that are manifested by nighttime voiding of 5 or more times. 5. The Veteran has residual respiratory symptoms due to his disseminated strongyloides infection that are manifested by FEV-1 of 56- to 70-percent predicted and FEV-1/FVC of 56 to 70 percent. 6. Prior to February 1, 2014, the Veteran has been in receipt of a combined 100 percent schedular disability rating. 7. From February 1, 2014, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected conditions. 8. From November 1, 2013 and prior to February 1, 2014, the Veteran's mitral valve regurgitation is rated at 100 percent disabling and the Veteran has additional service-connected disabilities rated at least 60 percent that are separate and distinct. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 100 percent for disseminated strongyloides infection, prior to November 1, 2013, and a compensable rating thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.88b, Diagnostic Code 6320. 2. The criteria for a separate rating of 10 percent, but no higher, for residual gastrointestinal symptoms have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.114, Diagnostic Code 7321. 3. The criteria for a separate rating of 10 percent, but no higher, for residual weakness and fatigue symptoms have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5025. 4. The criteria for a separate rating of 40 percent, but no higher, for residual urinary incontinence have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.115b, Diagnostic Code 7542. 5. The criteria for a separate rating of 30 percent, but no higher, for residual respiratory symptoms, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.97, Diagnostic Code 6604. 6. From February 1, 2014, the appeal regarding entitlement to TDIU is moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 7. The criteria for entitlement to TDIU, from February 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 8. The criteria for SMC based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate), from November 1, 2013 and prior to February 1, 2014, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to March 1956. The Veteran appealed a November 2016 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for disseminated strongyloides infection at a noncompensable level effective August 28, 2013. An October 2018 Board of Veterans' Appeals (Board) decision, granted a temporary total rating based on hospitalization for the Veteran's strongyloides infection effective August 28, 2013 to October 4, 2013, denied entitlement to special monthly compensation based on need for regular aid and attendance/housebound status, and remanded the issues of an initial compensable evaluation for strongyloides infection and entitlement to TDIU. An August 2021 rating decision granted a separate service connection rating for persistent depressive disorder and mitral valve regurgitation with valvular disease, and SMC based on housebound criteria from August 28, 2013 to November 1, 2013. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran is rated under Diagnostic Code 6320 for his strongyloides infection. The rating criteria directs the rater to evaluate under the General Rating Formula and provides that an active disease is rated at 100 percent disabling and that after the active disease has resolved, rate at 0 percent for infection. Additionally, rate any residual disability of the infection within the appropriate body system. As an initial matter, the Veteran is already awarded a 100 percent rating for his strongyloides infection from August 23, 2013 and prior to November 1, 2013. A September 2019 Board decision found that the period of hospitalization was correctly calculated. As noted in the October 2018 Board decision, the Veteran's active strongyloides infection resolved. After the Veteran's strongyloides treatment in 2013, medical evidence does not indicate another active case of the disease during the period on appeal. The Veteran and his representative do not allege that the Veteran has had another active case of the disease. Therefore, the case turns to whether the Veteran has had any resulting residuals from the active disease following his treatment completed in October 2013. The Board notes that, during the course of the instant appeal, the Veteran was awarded service connection for his heart and psychiatric disorder due to his service-connected strongyloides infection. The Veteran has not expressed further disagreement with the ratings for his depressive disorder and mitral valve regurgitation. Therefore, the Board will not disturb those findings and will only address other alleged residual symptoms during the period on appeal. November 2013 treatment records noted gastrointestinal issues, weakness, and constipation. March 2014 treatment records noted loss of balance and increased daytime voiding. The Veteran specifically noted that he had pulmonary and gastrointestinal residuals. See January 2017 notice of disagreement (NOD). The Veteran stated in February 2017 that he has weakness and loss of balance, urinary frequency 4 to 5 times a night, difficulty walking, shortness of breath, constipation, and swallowing and speech impairment. Apart from cardiovascular and psychiatric symptoms, in which the Veteran is already service connected for those symptoms, the Veteran's alleged symptoms above can be categorized as gastrointestinal issues, weakness and fatigue issues, urinary issues, and respiratory issues. The Board notes that the record includes positive nexus opinions noting the Veteran's gastrointestinal issues, weakness and fatigue issues, urinary issues, and respiratory issues are residuals of the Veteran's previously active strongyloides infection. See October 2018 Dr. B.W. evaluation; December 2018 examination reports. The Board finds the opinions probative and that separate ratings are warranted for the above symptoms. The ratings will be separately addressed below. The Board finds that the various alleged symptoms during the period on appeal are all contemplated in the below ratings. 1. Separate Rating for Gastrointestinal Symptoms The Board finds the Veteran's gastrointestinal symptoms more closely approximate that of Diagnostic Code 7321 for amebiasis. Under Diagnostic Code 7321, asymptomatic amebiasis is rated at noncompensable levels and mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention, chronic constipation interrupted by diarrhea is rated at 10 percent disabling. As noted above, the Veteran has had gastrointestinal issues for the entire period on appeal. The April 2018 examination report for infectious intestinal disorders noted mild intestinal symptoms with an inability to move bowels unless the Veteran uses medications. The December 2018 examination report regarding infectious diseases noted diarrhea and constipation and that the Veteran has to take frequent bathroom breaks, has daily bowel movements, and has frequent episodes of abdominal distress. Based on this evidence, the Board finds that a separate 10 percent rating is warranted for the entire period on appeal for the Veteran's gastrointestinal symptoms. This is the maximum rating under Diagnostic Code 7321. 2. Separate Rating for Weakness and Fatigue Symptoms The Board finds the Veteran's complaints of weakness, fatigue, sleep issues, balance issues, and general physical limitations more closely approximate that of Diagnostic Code 5025 for fibromyalgia. Diagnostic Code 5025 contemplates fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. Specifically, Diagnostic Code 5025 provides for a 10 percent rating for fibromyalgia symptoms that require continuous medication for control. A 20 percent rating is warranted for fibromyalgia symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent rating is warranted for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. November 2013 treatment records note general medication for pain. Dr. B.W's October 2018 evaluation noted generalized weakness, dizziness, sleep disturbances, and that the Veteran's daughter has to help with driving and cooking. October 2021 correspondence noted total body pain. Based on the Veteran's various symptoms, the Board finds that the Veteran is entitled to a separate 10 percent rating for his generalized weakness and fatigue for the entire period on appeal. However, the Veteran is not entitled to a higher rating since the evidence does not demonstrate symptoms reflecting refractory to therapy or episodic exacerbations. 3. Separate Rating for Urinary Incontinence The Board finds the Veteran's complaints of urinary frequency more closely approximate that of Diagnostic Code 7542 for neurogenic bladder, which is rated as voiding dysfunction. Voiding dysfunction related to residuals of prostate cancer is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. For urinary leakage, a 40 percent evaluation is assigned for the wearing of absorbent materials which must be changed two to four times per day. A 60 percent evaluation is assigned for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Under urinary frequency, a 40 percent rating is assigned for daytime voiding at interval of less than one hour or awakening to void five or more times per night. The maximum rating permitted for urine leakage is 60 percent, frequent urination is 40 percent, and obstructed voiding is 30 percent. Accordingly, with regard to voiding dysfunction, the highest evaluation potential for this Veteran is found in the urinary leakage criteria. February 2017 correspondence noted voiding 15 times per day and 8 to 10 times at night. The Veteran had to get up 4 to 5 times per night due to his urinary frequency. Id. The Veteran is competent to attest to his urinary frequency. The Board finds the Veteran's statements credible. Since the Veteran has to get up at night due to urinary frequency up to 5 times per night, he is entitled to a 40 percent rating for the entire period on appeal. However, the Veteran is not entitled to a higher rating since the evidence does not demonstrate the wearing of absorbent materials which must be changed more than 4 times per day. 4. Separate Rating for Respiratory Symptoms The Veteran is diagnosed with COPD. See April 2021 examination report. As such, the Board finds the Veteran's respiratory symptoms should be rated under Diagnostic Code 6604 for COPD. Under Diagnostic Code 6604, Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. The December 2018 examination report regarding respiratory conditions noted current symptoms of shortness of breath and related dyspnea, and that the Veteran requires chronic low dose corticosteroids and intermittent inhalation anti-inflammatory medication. The December 2018 examination report noted poorer post-bronchodilator results. Therefore, the pre-bronchodilator results are to be used and were noted to be FEV-1 of 69 percent and FEV-1/FVC of 58 percent. The April 2021 examination report noted daily inhalational bronchodilator therapy and anti-inflammatory medication. Based on this evidence, the Veteran warrants a rating of 30 percent for the entire period on appeal. The Veteran does not warrant a higher rating since the evidence does not demonstrate bronchodilator results of 55 percent predicted or less. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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) (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. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if the Department of Veterans Affairs (VA) has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. 1. Prior to February 1, 2014 The Veteran has a combined schedular rating of 100 percent prior to February 1, 2014. Throughout the period on appeal, the Veteran's disseminated strongyloides infection and mitral valve regurgitation had periods in which they alone were rated at 100 percent disabling. Prior to November 1, 2013, the Veteran has already been granted SMC at the housebound rate. As noted below, the Veteran is also granted SMC until February 1, 2014. Therefore, the issue of entitlement to TDIU is moot prior to February 1, 2014 and is dismissed. 2. From February 1, 2014 Pursuant to this decision, throughout the period on appeal, the Veteran has at least a combined 70 percent rating and his persistent depressive disorder is rated at 40 percent disabling. The Veteran noted that he was a furniture upholsterer, butcher, and security guard until his emergency room visit in June 2013. See May 2016 Veteran statement. The Veteran has a high school education and stopped working in June 2013 and lost his job due to functional limitations. See September 2018 VA Form 21-8940. Dr. P.S.'s September 2016 statement noted the Veteran has associated cardiac valvular damage due to his strongyloides infection and that he was not able to return to work. Dr. B.W.'s October 2018 evaluation noted the Veterans residuals of his strongyloides infection renders him unable to sustain gainful employment. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, medical providers have found the Veteran unemployable due to his strongyloides infection residuals. As noted above, the Veteran has frequent bowel movements. Therefore, he would have to work in a position that allows for frequent breaks and close access to a bathroom. The Veteran has cardiovascular, respiratory, and weakness and fatigue symptoms that would impact his ability to complete physical activity tasks or require the Veteran to be on his feet for prolonged periods of time. Therefore, the Veteran would not be able to competently complete his duties in his previous employment positions since they required him to lift heavy objects, be on his feet, and reliably complete physical tasks. The Veteran would similarly not be able to work in warehousing or customer service positions. The Veteran does not have training, education, or experience in a seated position as administration or computers that would allow him the necessary breaks and amenities to address his various conditions. The Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected disabilities, in combination, at least as likely as not prevented him from obtaining and maintaining gainful employment from February 1, 2014. Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met from February 1, 2014. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). SMC SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a 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). The Board notes the Veteran is in receipt of a combined 100 percent rating prior to February 1, 2014. The Veteran is already in receipt of SMC until November 1, 2013. From November 1, 2013 and prior to February 1, 2014, the Veteran's mitral valve regurgitation is rated at 100 percent disabling. Pursuant to this decision, the Veteran has other service-connected disabilities independently rated at least at a combined 60 percent rating. (Continued on the next page) As such, the Veteran is entitled to SMC at the housebound rate from November 1, 2013 and prior to February 1, 2014. See 38 U.S.C. § 1114(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate Counsel 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.