Citation Nr: 21013335 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-29 777 DATE: March 9, 2021 ORDER The appeal for a higher initial rating for GERD is dismissed. The appeal for a higher initial rating for esophagitis is dismissed. An initial rating of 10 percent under Diagnostic Code 7804, but no higher, for right arm furuncle is granted. An initial rating higher than 50 percent for obstructive sleep apnea, or secondary service connection for daytime breathing problems claimed as a manifestation of obstructive sleep apnea, is denied. A total disability rating due to individual unemployability is granted from December 5, 2011. REMANDED Entitlement to an initial rating higher than 70 percent for PTSD and depressive disorder is remanded. Entitlement to an initial rating higher than 10 percent for lumbar spine degenerative disc disease is remanded. Entitlement to service connection for numbness of the left leg, claimed as residuals of shingles, is remanded. FINDINGS OF FACT 1. At the August 2020 Board hearing, the Veteran knowingly and intentionally withdrew his claims for higher initial ratings for GERD and for esophagitis. 2. The evidence establishes that across the appeal period the Veteran’s right arm furuncle has manifested in pain. 3. The evidence does not establish that the Veteran’s obstructive sleep apnea manifests in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires a tracheostomy. 4. There is not sufficient competent evidence of record to establish that the Veteran’s daytime breathing problems are related to his service-connected obstructive sleep apnea. 5. From December 5, 2011, the Veteran has multiple service-connected disabilities combining to 90 percent, one of which is rated at 40 percent or more. 6. Resolving any reasonable doubt in the Veteran’s favor, the evidence establishes that the Veteran has not able to secure or maintain substantially gainful employment due to his service-connected disabilities from December 5, 2011. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal of the initial ratings for GERD and for esophagitis have been met. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. 2. The criteria for an initial 10 percent rating, but no higher, for painful right arm furuncle have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805, 7819. 3. The criteria for an initial rating higher than 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6847. 4. The criteria for secondary service connection for daytime breathing problems, claimed as a manifestation of obstructive sleep apnea, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 5. The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met from December 5, 2011. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably, including active duty periods from March 2005 to August 2009, September 2009 to September 2010, and December 2010 to December 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2020 Board hearing before the undersigned Veterans Law Judge. At the Board hearing, the Veteran expressed his intention to withdraw his claims for higher initial ratings for GERD and for esophagitis, acknowledging that he understood the full effect of the withdrawal. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Given the withdrawal of allegations of error in the determination being appealed, the appeals for these claims are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. The Veteran’s remaining claims are for higher initial ratings for a right arm furuncle, sleep apnea, PTSD and depressive disorder, and lumbar spine arthritis, and for service connection for a condition of the left leg. The Veteran also has raised the issue of entitlement to a total disability rating due to individual unemployability. A. Initial Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Right Arm Furuncle The Veteran appeals the assignment of an initial noncompensable rating for a right arm furuncle. The Veteran’s condition is rated under Diagnostic Code (DC) 7819, for benign skin neoplasms, which provides that the disability be rated under DC 7800, 7801, 7802, 7804, or 7805, or impairment of function. 38 C.F.R. § 4.118. DC 7800 provides a rating for burns, scars, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. As the Veteran’s furuncle is of his arm, and not of the head, face, or neck, a rating under DC 7800 is not warranted. Id. DC 7801 provides for a rating for scars not of the head, face, or neck that are associated with underlying soft tissue damage. (Though an amendment to DC 7801 became effective August 13, 2018, there was no material change between the prior version and the current version.) A 10-percent rating is warranted for an area at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20-percent rating is warranted for an area at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30-percent rating is warranted for an area of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40-percent rating, which is the highest rating available under these criteria, is warranted for an area of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. DC 7802 provides a rating for scars not of the head, face, or neck that are not associated with underlying soft tissue damage. (Though an amendment to DC 7802 became effective August 13, 2018, there was no material change between the prior version and the current version.) Under DC 7802, a single 10-percent rating is available where the affected area is 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. Under DC 7804, for unstable or painful scars, a 10-percent rating is warranted for one or two scars that are unstable or painful. A 20-percent rating is warranted for three or four scars that are unstable or painful. A 30-percent rating, which is the maximum rating available under the schedule, is warranted for five or more scars that are unstable or painful. An unstable scar means a scar that, for any reason, has frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). Under DC 7805, for other scars and other effects of scars evaluated under the above DCs, any disabling effects not considered in those DCs are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Turning to the evidence, at the August 2020 Board hearing, the Veteran testified that the furuncle has continuously irritated him since it appeared in service. He contended that he was entitled to the minimum compensable rating under DC 7804 for the pain. As remarked at the Board hearing, an August 20, 2012 VA examination noted that at that time the furuncle was painful and red, with the Veteran stating it was especially painful with arm movement. Based on this evidence, the Board agrees that the evidence is sufficient to establish that the Veteran’s right arm furuncle has been painful from the effective date of December 5, 2011, warranting an initial rating of 10 percent under DC 7804. 38 C.F.R. § 4.118. A higher rating is not warranted. DC 7804 requires three or four painful or unstable scars (or similar service-connected benign neoplasms, as in the case of the furuncle), but here the Veteran’s has only one service-connected painful skin condition. 38 C.F.R. § 4.118. Regarding DCs 7801 and 7802, VA treatment records, to include a January 2014 note, reflect that the Veteran’s axilla is approximately 2 centimeters of area. Under DC 7801, assuming it could be established that the furuncle is associated with underlying soft tissue damage, a compensable rating requires an affected area of at least 39 square centimeters (6 square inches). Under DC 7802, the single rating requires an affected area of at least 929 square centimeters. Accordingly, the evidence does not support that the furuncle is of a sufficient area to support a higher rating under either of these DCs. 38 C.F.R. § 4.118. Finally, though it was noted that the Veteran experiences pain when moving his arm, the rating under DC 7804 for pain compensates for this disabling effect. 38 C.F.R. § 4.118, DC 7805. Therefore, an initial rating of 10 percent, but no higher, for right arm furuncle is granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, 7805, 7819. 2. Obstructive Sleep Apnea The October 2012 decision on appeal granted service connection for obstructive sleep apnea and originally assigned an initial noncompensable rating. In January 2013, the Veteran disagreed with that decision based on the fact that he had been prescribed a CPAP machine, which he noted would warrant a higher rating under the criteria. A December 2016 VA examination confirmed that the Veteran’s sleep apnea requires use of a CPAP machine, and accordingly a March 2013 rating decision was issued setting the Veteran’s initial rating to 50 percent. While no more than a bare notice of disagreement and substantive appeal were filed since that time, at the August 2020 Board hearing the Veteran’s attorney solicited testimony from the Veteran that he currently has shortness of breath during the daytime, which was contended as related to his service-connected obstructive sleep apnea. It was stated that while “it is unclear, certainly, as to whether or not his daytime breathing issues are specifically caused by his obstructive sleep apnea or even a potential other diagnosis, . . . he doesn’t have any other diagnosis in the VAMC medical records . . . except[] the obstructive sleep apnea. Certainly, there’s a potential that that issue has caused him to now suffer from oxygen saturation issues, breathing issues that are affecting him during the daytime.” At August 2012 and December 2016 VA examinations for sleep apnea, the Veteran was not found to have evidence of chronic respiratory failure with carbon dioxide retention. The Board has reviewed the VA treatment records and private treatment records and notes that the only mention of daytime breathing trouble is when in crowds or enclosed spaces, a symptom that was directly attributed to his service-connected psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). There is no separately diagnosed daytime breathing disorder of record, nor is there any competent evidence indicating that the symptom as described by the Veteran is related to his service-connected sleep apnea. The Board acknowledges the contention from the Veteran and his attorney that the symptom could be related to his obstructive sleep apnea but notes there is no evidence that the Veteran or his attorney has the education, training, or experience to competently opine on the etiology of breathing problems, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). For these reasons, the Board finds that there is insufficient evidence to warrant secondary service connection for the claimed condition within the context of the present increased-rating appeal. 38 C.F.R. § 3.310. (For the same reasons, the Board also finds insufficient evidence to trigger VA’s duty to provide a medical opinion or examination regarding the claimed condition. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)).). An increased rating for obstructive sleep apnea is not otherwise warranted. Under DC 6847, a rating higher than 50 percent is warranted only if there is evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale or a tracheostomy required, and none of the evidence supports that the Veteran’s sleep apnea has manifested in chronic respiratory failure or required a tracheostomy. 38 C.F.R. § 4.97. An initial rating higher than 50 percent for obstructive sleep apnea is denied. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.303, 3.310, 4.97, DC 6847. B. Total Disability Rating Due to Individual Unemployability At the August 2020 Board hearing, the Veteran expressly requested entitlement to a total disability rating due to individual unemployability (TDIU), citing evidence during the appeal period regarding unemployability and providing additional supporting testimony at the hearing. Where unemployability due to service-connected disabilities is raised in an appeal for an increased rating, entitlement to a TDIU is part and parcel of the increased-rating claim. Rice v. Shinseki, 22 Vet. App. 447, 448, 449 (2009). Therefore, the Board will now consider the claim for a TDIU. A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Id. All of the Veteran’s claims for higher initial ratings have an effective date of December 5, 2011. From this date, the Veteran’s combined rating is 90 percent, with disabilities including PTSD and depressive disorder rated at 70 percent; obstructive sleep apnea rated at 50 percent; lumbar spine degenerative disc disease rated at 10 percent; GERD and esophagitis rated at 10 percent; and right arm furuncle, now rated at 10 percent. Thus, the first criterion under 38 C.F.R. § 4.16(a) is satisfied, and the Board will consider the second criterion of whether the Veteran has been unemployable due to his service-connected disabilities. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran’s education includes a high school degree and a college degree in business administration. Before service, he worked as a restaurant manager. In service, his occupational specialty was in language translation. At an October 2012 examination, it was noted that due to his psychiatric disability manifesting in poor concentration and focus, the Veteran had to withdraw from his pursuits of a degree in Middle Eastern studies in 2008 and 2009. At the Board hearing, the Veteran testified that since separation he has worked a single job, and only for four or five months until he was laid off. The position was offered to him by a servicemember who owned an automobile emissions inspection garage. The Veteran’s job duties included moving and parking cars, but after incidents where he could not remember where he parked cars or where he placed sets of car keys, he was let go and told he needed “to relax at home.” The Veteran further testified at the Board hearing that at the job he only worked 3 to 5 hours maximum a day, because working longer than that made him very tired. Regarding the Veteran’s psychiatric disability, the record reflects that his symptoms include depression and anxiety, hypervigilance and near-continuous panic or depression, disturbances in motivation, chronic sleep impairment and nightmares, impairment of memory, difficulty adapting to stressful circumstances including work or worklike settings, inability to establish and maintain effective relationships, social detachment and isolation, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. Due to the Veteran’s high social avoidance and inability to tolerate enclosed spaces, the October 2012 examiner stated that “it would be quite difficult for him to function in any type of work setting.” In October 2013, a clinician opined that the Veteran’s PTSD “has prevented Veteran from school, work” and renders him unable to manage his own financial affairs. In addition to the Veteran’s PTSD and depressive disorder causing cognitive problems such as difficulty focusing and impairing his ability to sleep, which makes him tired during the day, the evidence also shows that the Veteran’s obstructive sleep apnea and GERD/esophagitis contribute to daytime tiredness and impaired ability to focus. At an October 2012 examination regarding the Veteran’s service-connected lumbar spine disability, it was noted that due to the Veteran’s symptoms of reduced range of motion, stiffness, locking up, and stabbing pain when bending, he would have difficulty with employment, including any job requiring repetitive bending or heavy lifting. As discussed above, the evidence shows that the Veteran’s service-connected right arm furuncle causes pain when he lifts his arm. Based on all the evidence of record, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities have rendered him unable to secure or maintain substantially gainful employment across the appeal period. The evidence reflects that the due to the effects of his PTSD and depression, sleep apnea, and esophageal conditions, the Veteran has impairments in his cognitive abilities, which are made worse by his difficulty sleeping. The Veteran’s social isolation and inability to tolerate enclosed spaces have also been opined to significantly interfere with his ability to obtain and maintain substantially gainful employment. Evidence of record has shown the Veteran’s symptoms to have in fact impaired his ability to work, such as the Veteran’s being laid off after working four or five months in 2018 due to his cognitive impairments, as well as needing to withdraw from his educational in 2008 or 2009. In addition to these limitations, the Veteran has physical impairments including with his back, which he testified has worsened such that he now cannot bending over due to pain (as will be discussed below), and with his arm. Based on all this evidence, the Board finds that the Veteran’s service-connected disabilities have rendered him unemployable across the appeal period. Accordingly, a TDIU is granted from December 5, 2011. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. REASONS FOR REMAND The Board finds that the remaining claims must be remanded for VA examinations. Regarding the claim for an initial rating higher than 70 percent for PTSD and depressive disorder, at the August 2020 Board hearing the Veteran testified that he heard voices of soldiers he had served with who had died. Evidence across the rest of the appeal period has shown the Veteran continuously denying hallucinations or delusions, and therefore with this evidence of worsening psychiatric symptoms, a new VA examination must be provided. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (citing Allday v. Brown, 7 Vet. App. 517, 526 (1995)). Regarding the claim for an initial rating higher than 10 percent for lumbar spine degenerative disc disease, at the August 2020 Board hearing the Veteran requested an updated examination, testifying that since the most recent examination in August 2012 he is no longer able to bend over to pick up objects from the floor and must instead bend down onto his knee. Given this objective evidence of a worsened back condition, the Board agrees that a new examination is warranted. Id.; see Snuffer, 10 Vet. App. at 403. Regarding the claim for service connection for left leg numbness as a residual of shingles, the Veteran testified that his leg becomes numb, and on three or four occasions beginning in 2013, was so numb that he fell to the ground. He related that while serving at Camp Shelby in 2011 he contracted shingles with a rash on his left leg and low back, rendering him bedridden for three days and for which he was treated with medication. Though the Veteran was provided a VA examination regarding this claim in August 2012, the examiner simply noted that “review of claims folder was negative for diagnosis or treatment of shingle [sic].” Notwithstanding that the clinician is correct that there currently is not a service treatment record documenting the Veteran’s in-service contracting or treatment for shingles, the Veteran’s personnel records show that he was at Camp Shelby during this time period, and in general an examiner may not ignore a Veteran’s competent testimony regarding his experiences in service simply because there is no documentation to support it. Dalton v. Nicholson, 21 Vet. App. 23, 39, 40 (2007). Thus, the Board will remand for a new examination that considers the entirety of the evidence, and the Board will also direct for the RO to attempt to obtain any outstanding service records, to include any treatment records or medical examinations that may provide more information regarding the Veteran’s shingles in service. Accordingly, the matters are REMANDED for the following action: 1. Attempt to obtain any outstanding service records, to include service treatment records from the Veteran’s active duty period during 2011 and any separation medical examinations following that period. Please document all attempts in the claims file. 2. Schedule the Veteran for an examination to assess the current severity of his service-connected PTSD and depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include the Veteran’s report at the August 2020 Board hearing that he hears voices of servicemembers who have passed away. 3. Schedule the Veteran for an examination regarding the nature and etiology of any condition manifesting in left leg numbness, to include as residuals of shingles. a. For any condition diagnosed, the examiner must opine whether the condition at least as likely as not was incurred in service or is otherwise related to the Veteran’s service, to include his in-service bout of shingles. Consider the Veteran’s testimony that the in-service bout of shingles caused a rash on his left leg and rendered him bedridden and unable to walk for three days due to pain. b. If the Veteran’s symptoms are unable to be attributed to any known diagnosis, opine whether the Veteran’s condition at least as likely as not (i) is an undiagnosed illness (defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis) or (ii) is a medically unexplained chronic multisymptom illness (defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, including neurological signs or symptoms, and has features out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities). 4. Schedule the Veteran for an examination to assess the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Please specifically consider and discuss any radiculopathy that may be manifesting in numbness symptoms in the left leg. 5. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claims. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.