Citation Nr: A21019191 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200306-73886 DATE: December 2, 2021 ORDER Entitlement to service connection for lower lumbar neuropathy of the left lower extremity is dismissed. Entitlement to service connection for lower lumbar neuropathy of the right lower extremity is dismissed. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity is dismissed. Entitlement to an earlier effective date for service connection for right upper extremity neuropathy is dismissed. Entitlement to TDIU is granted. Whether new and relevant evidence has been submitted to reopen service connection for PTSD is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, mixed anxiety, and depressed mood, is remanded. Entitlement to service connection for erectile dysfunction, to include secondary to service-connected disabilities, is remanded. Entitlement to special monthly compensation (SMC) based on loss of use is remanded. FINDINGS OF FACT 1. On July 27, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested that the Board withdraw his appeal for entitlement to service connection for lower lumbar neuropathy of the left lower extremity 2. On July 27, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested that the Board withdraw his appeal for entitlement to service connection for lower lumbar neuropathy of the right lower extremity 3. On July 27, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested that the Board withdraw his appeal for an increased rating for peripheral neuropathy of the right upper extremity. 4. On July 27, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested that the Board withdraw his appeal for an earlier effective date for service connection for peripheral neuropathy of the right upper extremity. 5. The evidence received since the June 2008 denial of service connection for PTSD is new and relevant. 6. The Veteran meets the schedular criteria for TDIU. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for lower lumbar neuropathy of the left lower extremity by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of service connection for lower lumbar neuropathy of the right lower extremity by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of entitlement to an increased rating for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. New and relevant evidence has been received to warrant readjudicating the claim of entitlement to service connection for PTSD. 38 C.F.R. § 3.156(d). 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals on appeal from a March 2019 rating decision by the Agency of Original Jurisdiction. In March 2020, the Veteran submitted a VA Form 10182 (Notice of Disagreement). He selected the Hearing docket. Because the Veteran selected the Hearing docket, the Board may only consider the evidence of record at the time of the March 2019 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302 (a). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. Dismissal of claims 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. A withdrawal of an issue must be "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the July 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to service connection for lumbar neuropathy of the right lower extremity, entitlement to service connection for lumbar neuropathy of the left lower extremity, entitlement to an earlier effective date for an increased rating for right upper extremity neuropathy, and entitlement to an increased rating for right upper extremity peripheral neuropathy. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those issues. See Hearing Transcript at 3. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. Entitlement to TDIU The Veteran contends that service-connected peripheral neuropathy of the upper and lower extremities renders him unable to work. At the Board hearing, the Veteran the Veteran testified that he worked as a press operator for 18 years. He stated that he has also done yard work. He testified that the work was mostly standing. He testified that his legs and arms are weak. He testified that he cannot drive because he has problems controlling a vehicle due to numbness in of his feet. See Hearing Transcript at 14. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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 purposes of TDIU, disabilities of common etiology or affecting a single body system will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). For the purposes 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, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities include: peripheral neuropathy of the left upper extremity associated with diabetes mellitus type II (20 percent from October 11, 2016 and 40 percent from October 10, 2017); peripheral neuropathy of the right upper extremity associated with diabetes mellitus type II (20 percent from September 11, 2017 and 30 percent from December 6, 2017); peripheral neuropathy of the right lower extremity associated with diabetes mellitus type II (10 percent from October 11, 2016, 10 percent from August 3, 2017, and 20 percent from January 23, 2019); peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II (10 percent from October 11, 2016, 10 percent from August 3, 2017, and 20 percent from January 23, 2019); diabetes mellitus type II (10 percent from October 16, 2007); tinnitus (10 percent from January 29, 2015) and folliculitis (30 percent from August 3, 2017 and 10 percent from October 29, 2018). The percentage criteria of § 4.16(a) are met from August 3, 2017, the date on which the Veteran had a 60 percent combined rating for disabilities having a common etiology. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). A claim for TDIU was received in August 2017. In the claim, the Veteran indicated that he is unable to work due to his service-connected peripheral neuropathy and lumbar neuropathy. He reported that he last worked full-time in 2008. As to his education and training, the application reflects that he completed high school and had additional training as a machine operator. For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected diabetes mellitus and peripheral neuropathy of the upper and lower extremities. The medical records and lay evidence show that he is unable to stand for long periods and has weakness in his upper extremities. A January 2008 VA examination for diabetes mellitus reflects that the Veteran reported that he had been employed as a press operator for more than 20 years. A November 2016 VA examination for peripheral neuropathy reflects that the examiner opined that peripheral neuropathy does not affect the Veteran's ability to work. The Veteran had a VA examination for diabetes and peripheral neuropathy in September 2017. The examination showed functional impairment due to diabetes and peripheral neuropathy. The examiner opined that the Veteran is unable to stand for long periods of time due to neuropathy. In December 2017, a VA examiner opined that the Veteran has functional impairment due to diabetic neuropathy. The examiner opined that diabetic peripheral neuropathy impacts the Veteran's ability to work. The examination noted that the Veteran has functional loss with walking, climbing up and down stairs, and lifting and carrying items. A March 2019 VA examination reflects a medical opinion that peripheral neuropathy of the upper and lower extremities impacts the Veteran's ability to work. The examiner opined that the impact of the bilateral upper extremity neuropathy on the Veteran's ability to work is tasks requiring heavy lifting, overhead reaching, prolonged typing, writing, gripping/ handling, and pushing and pulling objects aggravates his condition. The examiner opined that the impact of the bilateral lower extremity peripheral neuropathy on the ability to work is task requiring prolonged standing, squatting, and climbing aggravates his condition. In August 2021, the Veteran's representative submitted an assessment from a vocational counselor. The vocational counselor discussed VA examinations dated in September 2017, December 2017, and March 2019, which showed functional impairment due to peripheral neuropathy of the lower extremities. The vocational counselor noted that the Veteran had worked in semi-skilled positions with medium physical demands. His jobs required standing and/or walking throughout the workday, with frequent handling, climbing, reaching, and stooping to perform repetitive short-cycle tasks throughout the workday. The vocational counselor opined that the Veteran does not have transferable skills to alternate occupation within the labor market and would be limited to unskilled work. The vocational counselor opined that, given what appears to be the chronicity of the Veteran's severe functional limitations due to service-connected diabetes mellitus type II and diabetic peripheral neuropathy of the upper and lower extremities, he is considered vocationally disabled and would not be able to consistently perform or sustain any type of substantially gainful occupation, even an unskilled occupation, since at least October 2016. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran's education, training and work history is mostly related to the operation of machines. He is unable to perform that type of work due to his physical impairments related to neuropathy of his upper and lower extremities. The Veteran also has performed yard work. However, he is unlikely to be able to do yard work, given his limitations on standing and walking caused by his service-connected peripheral neuropathy of the lower extremities. Accordingly, a TDIU is warranted. New and relevant evidence for service connection for PTSD An unappealed March 2008 rating decision denied service connection for PTSD. A September 2017 rating decision denied reopening of service connection for PTSD. The Veteran appealed the September 2017 rating decision. A February 2019 higher level review decision continued the denial of service connection for PTSD. The denial was based on the lack of a diagnosis of PTSD. The February 2019 rating decision noted that the February 1997 and January 2008 VA examinations did not show a diagnosis of PTSD. VA treatment records submitted since the last unappealed rating decision reflect that the Veteran has been diagnosed with PTSD. The Board finds that this evidence is new, as it was not part of the record before, and relevant as it provides treatment information to the claim on the appeal. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156 (d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501 (a)(1). Since the March 2008 denial, VA treatment record which are relevant to the claim for service connection for PTSD have been added to the record. VA treatment records reflect that the Veteran has a current diagnosis of PTSD. The Board finds that this evidence is new, as it was not part of the record before, and relevant as it provides treatment information to the claim on the appeal. Therefore, based on the finding that new and relevant evidence has been associated with the record subsequent to the previous denial, the claim of entitlement to service connection for PTSD must be readjudicated. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and depression, is remanded. The Veteran claims service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. A VA examination dated in February 2008 reflects that no mental condition was diagnosed. However, the examination noted mild PTSD symptoms with no impact on functioning. VA treatment records reflect that the Veteran has been diagnosed with PTSD and adjustment disorder with mixed anxiety and depressed mood. See December 2017 VA treatment records. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded to correct a duty to assist error that occurred prior to the March 2019 rating decision on appeal. VA treatment record that were in VA's constructive possession at the time of the March 2019 rating decision reflect diagnoses of an acquired psychiatric disorder. The AOJ did not obtain a VA examination prior to the rating decision that considered the evidence of a current diagnosis of an acquired psychiatric disorder. The Board finds that a VA examination is required to determine whether an acquired psychiatric disorder is related to service or a is caused or aggravated by his service-connected disabilities. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that erectile dysfunction is related to his service-connected diabetes mellitus. See November 2017 Notice of Disagreement. VA treatment records reflect a current diagnosis of erectile dysfunction. See September 2016 treatment records. The Veteran was afforded a VA examination in January 2012. The examiner opined that erectile dysfunction was less likely than not related to service-connected disabilities. The examiner's rationale was that the Veteran had well- controlled diabetes since 2006 for only two years prior to the onset of ED in 2008. The examiner opined that, conventionally, end organ effects such as ED are found when diabetes mellitus has been present for a longer time and/ or with poor control. The examiner noted that the Veteran had other risk factors for the onset of erectile dysfunction, such as hypertension, chronic prostatitis, and senescence. The examiner noted that the presence of DM can aggravate ED, but it would be mere speculation to state whether it did and to what degree. The examiner did not explain the basis for the opinion that speculation would be required to reach an opinion. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that the examiner should clearly identify precisely what facts cannot be determined. The Court held that it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. The issue of entitlement to service connection for erectile dysfunction is remanded to correct a duty to assist error that occurred prior to the March 2019 rating decision on appeal. The VA examiner did not provide an adequate explanation for the opinion regarding aggravation of erectile dysfunction due to diabetes mellitus. The Board finds that an addendum medical opinion is required to determine whether erectile dysfunction is aggravated by service-connected diabetes mellitus. 3. Entitlement to special monthly compensation based on loss of use is remanded. The Board finds the claim is inextricably intertwined with the Veteran's above service connection remanded claim for erectile dysfunction, since it is the basis for the loss of use of a creative organ. Accordingly, the Board will defer any action with respect to the Veteran's SMC claim based on loss of use of a creative organ until the completion of the development of his remanded service connection claim for erectile dysfunction. Harris v. Derwinski, 1 Vet. App. 180 (1991 The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). The examiner must opine as to whether PTSD is related to combat during his service in Vietnam. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Provide a rationale for the opinion. 2. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include combat service in Vietnam. Provide a rationale for the opinion. (a) If any other acquired psychiatric disorder other than PTSD is diagnosed, the examiner must opine whether such disorder is at least as likely as not proximately due to the Veteran's service-connected disabilities. Provide a rationale for the opinion. (b) If any other acquired psychiatric disorder other than PTSD is diagnosed, the examiner must opine whether such disorder is at least as likely as not aggravated beyond its natural progression by service-connected disabilities. The examiner must consider VA treatment records, which reflect assessments of PTSD and adjustment disorder with mixed anxiety and depressed mood. Provide a rationale for the opinion. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's erectile dysfunction is at least as likely as not aggravated beyond its natural progression by service-connected diabetes mellitus. Provide a rationale for the opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.