Citation Nr: 21072116 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-32 523 DATE: December 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) effective February 23, 2011, is granted. Entitlement to a disability rating greater than 10 percent for hemorrhoids with anal fissures is withdrawn. Entitlement to a disability rating greater than 20 percent for fibromyalgia is withdrawn. Entitlement to a disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) is withdrawn. Entitlement to service connection for vertigo as secondary to service-connected fibromyalgia is withdrawn. Entitlement to service connection for arthralgia as secondary to service-connected fibromyalgia is withdrawn. Entitlement to service connection for a left knee disorder as secondary to service-connected fibromyalgia is withdrawn. Entitlement to service connection for a right knee disability as secondary to service-connected fibromyalgia is withdrawn. Entitlement to service connection for bruxism, to include as secondary to service-connected PTSD, is withdrawn. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected PTSD, is withdrawn. Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to service-connected PTSD is withdrawn. Entitlement to service connection for impaired rectal sphincter is withdrawn. REMANDED Entitlement to service connection for a skin disability, to include folliculitis or fungal skin disorder, is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected PTSD and fibromyalgia preclude her from securing or following a substantially gainful occupation. 2. In September 2021 written correspondence, the Veteran's representative withdrew the appeals for increased evaluations for hemorrhoids, fibromyalgia, and PTSD, and service connection for vertigo, arthralgia, left knee disorder, right knee disorder, bruxism, IBS, GERD, and rectal sphincter impairment. CONCLUSIONS OF LAW 1. The criteria for a TDIU effective February 23, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 2. The criteria for withdrawal of the appeal for increased evaluations for hemorrhoids, fibromyalgia, and PTSD, and service connection for vertigo, left knee disorder, right knee disorder, arthralgia, bruxism, IBS, GERD, and rectal sphincter impairment have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to March 1992. The matter is on appeal from September 2011, June 2013, and September 2013 rating decisions. The matter was remanded previously by the Board in March 2019. Contrary to statements in the Form 9, issues of entitlement to an earlier effective date for the grant of service connection for hemorrhoids, PTSD, and fibromyalgia are not on appeal. Service connection for hemorrhoids was granted by a March 2003 rating decision and the Veteran did not appeal. 38 C.F.R. § 3.160(d), 20.1103. Service connection for PTSD and fibromyalgia were granted by a November 2010 rating decision and she did not appeal. Id. Moreover, in her October 2011 notice of disagreement, she stated that she wanted to appeal the September 2011 rating decision. Consequently, the earlier effective date claims are not before the Board. TDIU The Veteran contends that her service-connected PSTD, fibromyalgia, hemorrhoids contribute to her unemployability. She also contends that her non-service-connected IBS contributes to her unemployability. Given that IBS is not service connected it will not be discussed further in relation to the TDIU claim. See 38 C.F.R. §§ 3.341, 4.16. While TDIU as of May 4, 2020 was granted by a February 2021 rating decision, the Board observes that an award of TDIU prior to that date remains pending. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to May 4, 2020, the combined rating for her service-connected disabilities render her eligible for a TDIU on a schedular basis. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's occupational background is in performing secretarial or administrative support functions. Her highest level of education is a high school degree. The Board finds that the combined effects of the service-connected PTSD and fibromyalgia produced unemployability back to the date of claim, February 23, 2011. The Board will address the limiting symptoms of each disability in turn. The Board finds that the PTSD symptoms produced unemployability by impairing her mental capabilities to function appropriately in an office setting and undertake administrative/secretarial job duties. For example, a March 2011 social work letter indicated the Veteran's "emotional problems" hindered her from being gainfully employed. Then in January 2012 correspondence the Veteran indicated that if she was put in a work situation and "someone bothered her" that she would "kill them." In April 2012 the Veteran was hospitalized for mental health symptoms with psychotic features, such as hearing things and intentionally overdosing on pills. VA psychotherapy notes early in the appeal indicate the presence of auditory hallucinations. Moreover, in an August 2012 psychotherapy note she reported ruminative fantasies of strangling a stranger to death with whom she had an altercation with, the psychotherapists assessed the Veteran as having a high-risk factor of homicidal ideation without intent or plan. Other notes from that month, indicated that she reported suicidal ideations, homicidal ideations, and auditory hallucinations. A March 2013 report indicates the Veteran was hospitalized for suicidal thoughts and hearing voices. Hospitalization records further indicate psychotic features requiring inpatient treatment. In January 2017 she was hospitalized for suicidal ideations, with a corresponding VA Mental Health Triage note providing that she expressed "a clear and credible intent" to harm herself and was at potential risk for impulsive behavior. A September 2017 private psychiatric report detailed that several PTSD symptoms prevented employability for the Veteran. In February 2019, the Veteran was again hospitalized for suicidal ideations. Thereafter, a December 2019 private DBQ indicated that her PTSD resulted in occupational and social impairment with deficiencies in most areas, and endorsed symptoms of suicidal ideation and intermittent inability to perform activities of daily living. A February 2020 private doctor's letter indicated that the Veteran's PTSD, in part, directly impacted her ability to function at work as well as with other activities of daily living. The private provider indicated that, in her professional opinion, the Veteran was not able to work due to her mental health. The Board finds that the record evidence approximates total occupational impairment because of chronic suicidal ideations with episodic hospitalization and inability to perform daily activities that would be disruptive to work and result in absenteeism. Other symptoms such as auditory hallucinations, homicidal ideations, impaired impulse control and difficulty adapting to stressful situations would make it difficult for the Veteran to function appropriately in an office work environment and perform her job duties. Her PTSD symptoms further indicate that she would be unlikely to carry out customer service functions typically associated with administrative or secretarial work. As the totality of evidence throughout the appeal period demonstrates occupational impairment, the Board finds that the criteria for a TDIU effective February 23, 2011, due to service-connected PTSD have been met. The Board also finds that the Veteran is entitled to a TDIU due to her service-connected fibromyalgia. The August 2013 and July 2020 VA examinations showed widespread pain with constant to nearly constant fibromyalgia symptoms that were refractory to therapy. Both examinations indicated that fibromyalgia impacted her ability to work. The July 2020 VA examiner stated that the Veteran's fibromyalgia limits her ability to do lifting over 20 pounds, repetitive bending, and twisting. This examiner also stated that, while the Veteran could perform sedentary work, her body pain would interfere with her ability to concentrate for extended periods of time. Consequently, her physical capabilities to perform administrative or secretarial functions would be limited. The Board notes in this regard that experiencing all over body pain would impair the Veteran's ability to concentrate and make it unlikely that she could perform detail-oriented tasks often associated with administrative and secretarial work. The Board acknowledges that the Veteran was employed briefly for 11 days in 2019 as a clerical worker. The Board finds that this employment was marginal in nature due to its short duration and because it was provided by the Veteran's former spouse. In the relevant VA Form 214 192, the former employer stated that the Veteran was terminated due to episodes of anger and threats to attack customers. Accordingly, this brief attempt of employment has no impact on the grant of TDIU. Taken as a whole, the Veteran's symptoms suggest she was unable to obtain and maintain employment similar to jobs she has performed in the past as a result of her service-connected PTSD and fibromyalgia. As reflected by treatment records and examinations throughout the period on appeal, the Veteran's PTSD and fibromyalgia symptoms impaired her mental and physical capabilities to the point of rendering her unable to engage in a substantially gainful occupation. See Moore v. Derwinski, 1 Vet. App. 356 (1991). In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU effective February 23, 2011, have been met. Dismissed Claims In September 2021 written correspondence, the Veteran's representative indicated that the Veteran wished to withdraw her appeal for increased evaluations for hemorrhoids, fibromyalgia, and PTSD, and service connection for vertigo, arthralgia, left knee disorder, right knee disorder, bruxism, IBS, GERD, and rectal sphincter impairment. The Board notes that, while the September 2021 written correspondence sought to withdraw "sphincter impairment," by way of procedural history, in February 2012 the Veteran filed a claim for residuals from anal fissure surgery. The RO subsequently developed this claim for residuals as impairment of rectal sphincter control. While the September 2020 VA examiner's opinion discussed the esophageal sphincter, this statement is unrelated to the Veteran's contentions. The Board has recharacterized the claim for sphincter impairment as rectal sphincter impairment so there is no confusion as to what claim is withdrawn. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.205. Based on review of the record, the Board finds that the Veteran withdrew her appeals for increased evaluations for hemorrhoids, fibromyalgia, and PTSD, and service connection for vertigo, arthralgia, left knee disorder, right knee disorder, bruxism, IBS, GERD, and rectal sphincter impairment. There remains no allegation of errors of fact or law for appellate consideration with regards to this matter. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. REASONS FOR REMAND Entitlement to service connection for a skin disability, to include folliculitis or fungal skin disorder, is remanded. The record evidence shows that the Veteran has not been provided with a VA examination to assess the etiology of any skin disability, to include folliculitis or fungal skin disorder. It also shows that she has been diagnosed as having folliculitis and tinea. The Board notes in this regard that the threshold for providing Veterans with an examination is low. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that, on remand, an examination should be provided which addresses this matter. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of her claimed skin disability, to include folliculitis or fungal skin disorder. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a skin disability, to include folliculitis or fungal skin disorder, if diagnosed, is related to active service or any incident of service, to include a rash on the buttocks. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each skin disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a skin disability, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.