Citation Nr: A21019296 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 210405-149905 DATE: December 3, 2021 ORDER From October 26, 2017, entitlement to a total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT Effective October 26, 2017, the Veteran has been precluded from securing or following substantially gainful employment due to his service-connected psychiatric disorder. CONCLUSION OF LAW From October 26, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to May 2016. The case is on appeal from an April 2020 rating decision. Following issuance of the April 2020 rating decision, the Veteran elected to proceed in the modernized review appeal system (AMA) with an April 2021 notice of disagreement (NOD). See 38 C.F.R. § 19.2(d). The Veteran elected Direct Review of the evidence. As such, only the evidence of record at the time of the issuance of the April 2020 rating decision will be considered. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). From October 26, 2017, entitlement to a TDIU is granted. Legal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: a.) the veteran's history, education, skill, and training; b.) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; with factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and c.) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts The Veteran contends that a TDIU is warranted based on his service-connected psychiatric disability. He asserts in the October 2018 TDIU application that the sole disorder which caused a TDIU was his psychiatric disability. He indicated he last worked full-time and became too disabled to work in July 2017. He noted he is a high school graduate with no additional education or training. Initially, the Board notes that effective July 30, 2019, the Veteran is in receipt of a 100 percent combined schedular rating. The presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). The Veteran was afforded a VA opinion which was received in October 2017. The examiner indicated he is diagnosed with other specified trauma and stressor related disorder, adjustment disorder and alcohol use disorder. The examiner indicated his psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. She reported the Veteran experiences symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, impairment of short and long-term memory, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner additionally indicated the Veteran has recurrent thoughts of death, lack of energy and drive, feelings of worthlessness, as well as helplessness and hopelessness. The Veteran was afforded an October 2018 VA examination in which the examiner indicated he has occupational and social impairment due to mild or transient symptoms. The examiner reported the Veteran has normal judgment and cognition, and his behavior was appropriate. With regard to the Veteran's ability to work, the examiner stated his psychiatric disability would cause mild functional impairment in occupational functioning. The examiner noted the Veteran required breaks while working due to his anxiety but has job skills and was going to college. A March 2019 VA addendum opinion was submitted in which the examiner reported no clear active symptoms were found on examination and his emotional distress was within normal limits. A July 2019 VA treatment record indicated the Veteran continues to deal with ongoing depression, anxiety and insomnia. Analysis The Board determines the Veteran's service-connected psychiatric disorder has prevented him from maintaining all substantially gainful employment from October 26, 2017, the initial date of service connection for the psychiatric disability. In this regard, the Board finds that the evidence has reached a level of equipoise and when all reasonable doubt is resolved in the Veteran's favor, his claim for a TDIU is granted, effective October 26, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The October 2017 VA opinion indicated the Veteran's psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. Further, the examiner noted symptoms of anxiety, panic attacks, chronic sleep impairment, along with disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner also found the Veteran has a lack of energy and drive, feelings of worthlessness, as well as helplessness and hopelessness. As noted, in the Veteran's October 2018 TDIU application, he contends his psychiatric disability alone caused a TDIU. As his psychiatric disorder is service-connected from October 26, 2017, the Board finds a TDIU is warranted from that date. The Board notes the schedular criteria for a TDIU have been met since October 26, 2017. From October 26, 2017, the Veteran is service-connected for a psychiatric disorder rated as 50 percent disabling and his combined overall rating is 90 percent. See 38 C.F.R. § 4.16(a). In sum, the Board finds the Veteran has been precluded from securing or following substantially gainful employment due to his service-connected psychiatric disorder from October 26, 2017. This is considered a full grant of benefits for the TDIU claim, as the date of service connection for the Veteran's psychiatric disorder, which he claimed solely led to a TDIU, was October 26, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is warranted from October 26, 2017. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. 2. Entitlement to service connection for allergic rhinitis is remanded. 3. Entitlement to service connection for hemorrhoids is remanded. The Veteran contends that his asthma, allergic rhinitis, and hemorrhoids had their onset during service. He asserts these disorders may be related to his service in Southwest Asia. The Veteran's service personnel records (SPRs) confirm service in Southwest Asia pursuant to Operation Enduring Freedom. The Veteran's VA treatment records show treatment and/or diagnoses noted for the three claimed conditions. The Board notes the Veteran received treatment for allergic rhinitis and hemorrhoids within one year of his separation from service in May 2016. A December 2016 VA treatment record indicated the Veteran has hemorrhoids with intermittent bright red bleeding with bowel movements. A February 2017 VA record also noted hemorrhoids with intermittent bleeding. VA records dated February 2017 and May 2017 indicated a diagnosis of allergic rhinitis. Further, a November 2018 VA treatment record reported the Veteran experienced issues breathing and required an asthma inhaler and a later November 2018 record, showed he reported recurring problems with his asthma with increased shortness of breath. The evidence suggests the Veteran has diagnoses of asthma, allergic rhinitis and hemorrhoids which are related to service, and he has not been afforded VA examinations related to these claims. Accordingly, there is a duty to assist error prior to when the record was closed. See 38 C.F.R. § 3.159(c). As such, remand is warranted to afford the Veteran VA examinations to determine if he is diagnosed with the three conditions, and if so, whether such are related to service, including his exposure to environmental contaminants and hazards during his Gulf War service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his asthma and allergic rhinitis, if diagnosed. a.) The examiner is to first identify if the Veteran has a current disability or disabilities, to include any diagnoses of asthma and/or allergic rhinitis. The examiner is reminded that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), b.) The examiner is then to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disability or disabilities had its onset during, or are otherwise related to, service, to include his exposure to environmental toxins and hazards during his Persian Gulf service. If there are symptoms related to a respiratory disorder that cannot be attributed to a known diagnosis, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI), related to the Veteran's Persian Gulf War service. The examiner should also discuss the medical evidence showing treatment for the Veteran's asthma and allergic rhinitis, including treatment for allergic rhinitis within one year of his separation from service. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his hemorrhoids, if diagnosed. a.) The examiner should first identify if the Veteran has a current disability, to include any diagnosis of hemorrhoids. The examiner is reminded that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), b.) The examiner is then to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disability had its onset during, or is otherwise related to, service, to include his exposure to environmental toxins and hazards during his Persian Gulf service. If there are symptoms related to a hemorrhoids disorder that cannot be attributed to a known diagnosis, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI, related to the Veteran's Persian Gulf War service. (Continued on the next page) The examiner should also discuss the medical evidence showing treatment for the Veteran's hemorrhoids, including such within one year of his separation from service. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.