Citation Nr: 21021832 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-57 111 DATE: April 14, 2021 ORDER 1. Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU) is granted, subject to the regulations governing payment of monetary awards. 2. The appeal seeking service connection for a cervical spine disability is dismissed. FINDINGS OF FACT 1. The Veteran’s service connected disabilities (posttraumatic stress disorder (PTSD), rated 50 percent; irritable bowel syndrome (IBS), rated 30 percent; tinnitus, rated 10 percent; residuals of a gunshot wound (GSW) to the jaw, rated 10 percent; a right shoulder scar, rated 10 percent; and chronic obstructive pulmonary disease (COPD), rated 0 percent, are reasonably shown to render him unable to maintain substantially gainful employment. 2. In a January 2021 statement, prior to the promulgation of a decision in the matter (and after remand from the U.S. Court of Appeals for Veterans Claims (CAVC), the Veteran’s attorney withdrew his appeal seeking service connection for a cervical spine disability; there are no questions of fact or law in this matter remaining for the Board to consider. CONCLUSIONS OF LAW 1. The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. 2. The criteria for withdrawal of the appeal are met with respect to the claim seeking service connection for a cervical spine disability; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1989 to February 1993. These matters are before the Board of Veterans’ Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matters were initially before the Board on appeal of a February 2015 rating decision. A March 2019 Board decision denied service connection for a cervical spine disability and entitlement to a TDIU. The Veteran appealed the March 2019 decision to the CAVC. A February 2020 CAVC Order vacated the Board’s March 2019 decision that denied service connection for a cervical spine disability and entitlement to a TDIU rating and remanded it to the Board for further development and re-adjudication consistent with terms of a February 2020 Joint Motion for Remand (JMR). The parties to the February 2020 JMR agreed that the Board erred in its failure to assess the Veteran’s claim of service connection for a cervical spine disability under the theory of chronicity and failed to ensure that VA satisfied its duty to assist in obtaining potentially relevant private treatment records. Since the issue of entitlement to service connection for a cervical spine disability has been withdrawn by the Veteran, there will be no further discussion regarding this issue other than the acknowledgement by the Board that the Veteran did submit the private treatment records referenced in the JMR. Regarding TDIU, the parties agreed that the Board did not acknowledge certain treatment records, such as a February 2015 treatment record in support of the Veteran’s claim, which is discussed in more detail below. 1. A TDIU rating is granted. On May 2013 VA intestinal examination, the Veteran reported intermittent bouts lasting 1-2 days of recurrent cramping tenesmus symptoms with watery diarrhea, that did not cause him to miss work. He related that for the last 3 years, he had experienced occasional cramps, bouts with urgency, and fecal incontinence, at home and at work. He never missed days of work and used portable toilets on site, but although he carried extra underwear in his truck, the portable toilets were usually too far removed if he had an intestinal episode, so he often had to cut off his soiled underwear and dispose of it at work. The past month was his worst yet because he had 3 bouts of gross diarrheal incontinence. On May 2013 PTSD examination, the examiner opined that the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. He reported that he had been taking psychiatric medication, but discontinued usage because it was causing balance issues at work. He reported panic attacks three times a week, depression, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, and suicidal ideation. He denied suicidal intent and was offered inpatient admission, which he declined. A December 2013 SSA (Social Security Administration) function report notes that the Veteran reported that on one job he could not get along with the superintendent and was escorted from the premises. He stated that he did not handle stress well. On the Veteran’s March 2014 VA Form 21-8940 (TDIU application), he indicated that he completed four years of high school, had no other education or training, and became too disabled to work in July 2013. He attached a document indicating that he worked in 2008 for several drywall companies and earned total wages for a year as high as $61,010 in 2009 and as low as $13, 943 in 2013. A May 2014 VA treatment record notes that the Veteran reported that he now receives Social Security disability which had reduced his stress level and that he was adjusting to the idea that he may not be able to work again. He expressed a desire to work, but his strength and stamina preclude it. Warmer weather has allowed him to be outside more on his property, and he has been outside of the house a little more with his wife. He denied having suicidal or homicidal ideations or hallucinations. In July 2014, records received from the Social Security Administration (SSA) indicated that the Veteran became disabled in July 2013 due primarily to disorders of the back and secondarily to “short bowel syndrome.” The back disorders identified by SSA are cervical myelopathy, brown sequard syndrome, and a five- level spine fusion. On December 2014 PTSD examination, the examiner opined that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He reported that he had spent most of his time at home over the past two years, that he remained married to his wife of 22 years, and that due to his physical health conditions his wife maintained most of the household tasks because he slept the majority of the last month. He attributed his ongoing fatigue to medication side-effects. He reported poor concentration with ongoing irritability, that he did not like people or even being around people, and that he becomes nervous and avoidant of social interactions. He remains avoidant of social contact other than with his wife and mother. He related that he did not trust people which he thinks is due to his experience of being shot during his military service. He reported that he was last employed in July 2013 before his spine surgery, that his mood is stable even though he is easily agitated, and that he helps around the house although he has difficulty due to physical limitations. He related that he is scared to go into his basement because it reminds him of the bunkers he had to clear during service and triggers vivid memories. He uses self-talk and breathing exercises to assist with negotiating the basement stairs. He denied enjoyment of most activities, feels that he is a burden on his wife, and he feels useless. The Veteran denied suicidal or homicidal ideation, and identified his wife, mother, son, and VAMC providers as supportive and protective factors for him. He related that he enjoyed playing the guitar, which helped him relieve stress. On mental status examination, it was noted that the Veteran arrived on time, was appropriately dressed, and responded appropriately throughout the examination. The examiner found no obvious difficulties with speech, concentration, gait, orientation, or fund of knowledge. The Veteran appeared to provide an accurate representation of his current mental health status. The examiner opined that the Veteran was not impaired to the extent that he was unemployable. She explained that functional occupational impairment [specific to his symptoms of PTSD] is likely to be mild to moderate in nature which is suggestive that he would be able to maintain some type of gainful employment. On November 2014 VA shoulder examination, the Veteran had some limitations in the range of motion of his shoulder and mild pain on adduction. On December 2014 VA intestinal conditions examination, IBS was diagnosed. The Veteran reported 3-4 bowel movements daily, especially after each meal, that were mostly watery, rarely soft-formed only, and never bloody/melenic. He reported frequent tenesmus and lower abdomen cramping, sometimes severe, with rare visible distension transiently. The Veteran reported that he wears sweatpants some days to avoid tightness around his waist, and that he has episodes about 4-5 times a month where there is enough fecal leakage to cause him to have to change his underpants. He reported no nocturnal accidents, that he did not wear pads or absorbent undergarments, and that his disorder did not require continuous medications. On examination, the examiner noted that the Veteran had a scarless, firm, slightly distended abdomen, and there was no guarding or deep tenderness to palpation. Bowel sounds were constant/increased (there were no rushes and no increased tympani noted). Regarding functional impairment, the examiner noted that although the Veteran quit work (as a construction laborer/dry-waller) in 2013 due to worsening spine problems, he reported that for the last 2-3 years he experienced bowel accidents from his IBS diarrhea that caused him to need to change his white work pants several times a month. He related that “I couldn’t just tell the guys I was always sitting down in coffee.” A February 2015 VA treatment record notes that the provider opined that the Veteran was not able to work and was unemployable due to persistent PTSD and avoidance of contact with others. He explained that the Veteran continued to be isolative and avoidant of contact with anyone beyond his wife and mother, and even with them, was now more distant and subdued. The Veteran’s degree of function was very limited, he was essentially housebound, did not drive, lacked motivation for activity, and his wife has to try to coax him out of the house for any occasion. He was not socializing, had lost socialization skills, and avoided interactions. He was overly reactive when presented with encounters with others and became very upset if UPS approached his house. He either will hide or go outside in an overly cautious/aggressive manner. An April 2015 VA treatment record notes that the more the Veteran isolates at home, the calmer he is, but his comfort level for any perturbance from this continued to shrink. He continues to be highly vigilant, looking for entry and exit and cover and concealment wherever he goes, and trips out of the home are limited. The Veteran and his wife recently went to a Dairy Queen, but he remained in the vehicle. He reported that Sertraline helps his mood, but it is not helping his desire for avoidance and isolation. A July 2015 VA treatment record notes that the Veteran’s PTSD was stable, and that he has been leaving the house weekly to attend group therapy. He was resistant to participate in outings beyond those meetings, and denied having suicidal or homicidal ideation. An August 2016 VA treatment record notes that the Veteran reported that he stays home and ambulates with a walker due to a (non-service-connected) spinal cord injury. He related that he depends on his wife to drive him to appointments. The Veteran reported that he was irritable, easily startled, hypervigilant, and continued to have intrusive thoughts. On October 2016 PTSD examination, the diagnoses were PTSD and personality disorder not otherwise specified (NOS). The examiner opined that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. The Veteran reported that he had been married for 25 years, the marriage was good, and that he was extremely dependent on his wife for maintenance. He related that he had made no attempts at recent employment, he was able to do some household chores, he watched TV, he played guitar, and he took daily 30-minute walks around his property. The Veteran reported that he felt vulnerable because wife took away his guns and had him remove his booby traps. He was asked to list the reasons why he cannot work from most to least important. He related that he cannot handle anything, and that his plate is full, he hates people, his physical ability is limiting, he does not drive, and when he reads, he gets migraines and things get blurry. He was generally alone when he worked and liked it that way, and missed the type of work he did. He was then asked to identify what would have to change for him to be able to work the way he used to. He responded that “all this physical stuff” would need to be gone and that he worked himself to the bone because he had a kid. Earlier in October 2016, he reported suicidal ideation but denied homicidal ideation and hallucinations. He related that he had not driven in the last two years because of irritability. On mental status examination, the Veteran’s speech, concentration, gait, orientation, and fund of knowledge were normal. His mood was anxious, though distractable, but mostly coherent, and his speech was quavering and accelerated. The examiner noted that the Veteran’s PTSD symptoms included anxiety, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. He noted that the Veteran had a deep and generalized concern over physical health and asserts that his physical condition is what needs to improve to work, however, he rated psychological variables as restricting his capacity in the first two of his top 5 reasons for not working. The examiner noted that the Veteran’s score of 129 on a recent psychological assessment was near the mean for PTSD and that such individuals usually could work, although they would have crises in the course of employment. He noted that the Veteran’s customary occupation was probably ideal for him and that his current risk of suicide was minimal. A November 2016 VA treatment record notes that the Veteran reported some difficulty with IBS that included loose stool, that he had a difficult time holding his bowels, and incontinence. He denied constipation, but indicated that he often found it difficult to initiate a bowel movement. An April 2017 VA treatment record notes that the Veteran reported that during the day he talked to his mother by phone, spent time with his wife, went for walks around his property, and did some housework. He related that he stopped driving last year due to physical problems but also indicated that when he was driving, he would engage in road rage behaviors such as carrying pennies with him to throw at other vehicles and running other vehicles off the road. An August 2017 VA treatment record notes that the Veteran reported that he continued to have irritable bowels, that he could not handle his stools, and that he attended 10 group therapy classes. It was noted that he was easily startled, hypervigilant, and continued to have intrusive thoughts. A June 2018 VA treatment record notes that the Veteran reported that he was sleeping better but often felt tired. He related that he had a good relationship with his wife, kept to himself and occasionally visited his mother. A July 2019 VA risk assessment notes that the Veteran has fair judgment, has difficulty concentrating, may react to sudden and loud noises, is easily distracted, and has short term memory problems. He listed his strengths or abilities as someone who is hopeful and independent, a good listener, a hard worker, outgoing, and in a supportive family and who has friends on whom he can rely, and works well with others. He listed barriers to care as no longer driving. The provider noted that the Veteran has not been able to come to terms emotionally with traumatic service events, as evidenced by anxiety, anger, isolation, avoidance of people and things, and distance/numbing. A May 2020 VA treatment record notes a telephonic interview with the Veteran. He reported chronic neck pain and pain from leg spasms that occasionally interfered with functioning, agitation, and irritability. He related that he took walks on his property and played with his grandson who lives with him and his wife. He reported decreased energy, that he has trouble keeping up with a conversation, and that he often has to reread pages he just read. He reported he had no suicidal or homicidal ideation and that his wife was his social support. On mental status examination, he was cooperative and friendly, his mood and speech were within normal limits, his affect was congruent, his memory was grossly intact, and his thought process was logical. He denied having hallucinations. An additional May 2020 VA treatment record notes that the Veteran reported that he was able to do activities of daily living (ADLs) without assistance of another person and helped with housework when he could. He related that he did not drive, only left his property for medical appointments and to visit his mother, and spent his days walking his property, building wooden toys and birdhouses, playing guitar, watching TV, and playing with his grandson. In a December 2020 private psychiatric statement, the provider indicated that he had reviewed the Veteran’s record, to include his service treatment records, VA examinations, and remaining treatment records. He noted that since the Veteran left his job in construction in 2013, he has become progressively more socially isolated with poor stress tolerance, outbursts of anger, suicidal ideation, daily intrusive thoughts, and crying spells. These symptoms had caused complete psychiatric disability, with the Veteran being incapable of functioning effectively in social and occupational environments and instead living a reclusive lifestyle to avoid social interaction and potential triggers. The Veteran has also experienced additional physical impairment due to his right shoulder injury, and he has a history of cramping, diarrhea, and fecal incontinence as a result of his IBS. He related that his depression, fear, panic, and intrusive memories of Southwest Asia, associated with his PTSD, were very disabling and significantly affected his daily life. The Veteran described working in construction for more than fifteen years, primarily as a painter and drywaller, and stated there were multiple incidents in which he became defensive and raised his voice while he was at the job site. He also described an increase in PTSD symptomatology in 2011 when a company he worked for went bankrupt, that he sought more intense psychiatric services in 2012 due to persistent anxiety and depression, and that he became extremely socially isolated after a discectomy in 2013 kept him, in part, from returning to work. On mental status examination, it was noted that the Veteran was cooperative and appropriate with fair impulse control during the interview. His speech was flat in rate, tone and volume, and there was speech latency. He was moderately agitated, his mood was depressed, and his affect was congruent to the depressed mood, with significant anger. He reported having passive suicidal ideation without plan or intent and denied having homicidal ideation. He expressed a variety of themes associated with paranoid and persecutory beliefs; his thought processing was somewhat tangential and circumstantial. The provider opined that the Veteran’s PTSD alone has prevented him from working in any significant capacity since 2013, as he has lost the capacity to manage the interpersonal interaction required for meaningful employment and struggles even to complete his instrumental activities of daily living. The provider explained that the Veteran is severely and pervasively mentally ill and has demonstrated profound social isolation. He noted that, while employed, the Veteran was irritable, angry, and difficult to manage, although he utilized the long work hours, along with cannabis use and emotional distancing, to continue working until 2013. When he was forced to stop working in construction in order to recuperate from the operation, he lost one of his primary coping mechanisms to manage his PTSD, causing his mental illness to worsen significantly and become independently disabling. He manifested a steady decline in the skills required in even basic jobs, including task completion and communication. The provider further indicated that there is no chance that the Veteran could work in a gainful occupation due to his severe PTSD symptoms which are marked by anger, irritability, low frustration tolerance, distrust of others, and emotional lability. Regarding gunshot wound residuals and IBS, the provider notes that the right shoulder injury has limited the use of his arm which restricts his employment opportunities in construction, and his history of fecal incontinence due to IBS, which led to situations where he soiled himself at work, also restricts employment opportunities. The provider further opined that the combination of PTSD symptomatology, shoulder injury, and IBS, would prevent appropriate engagement in a meaningful and gainful occupational setting. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice-connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. The Veteran service-connected disabilities are: PTSD, rated 50 percent; IBS, rated 30 percent; tinnitus, rated 10 percent; residuals of a GSW to the jaw, rated 10 percent; a right shoulder scar, rated 10 percent; and COPD rated 0 percent. The combined rating is 80 percent. The schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met. The analysis turns to whether the service-connected disabilities render him unemployable. Considering the effects of the service-connected disabilities on employability, the Board finds most significant, in support of the Veteran’s claim, the opinions of the 2015 VA provider, who expressed familiarity with the Veteran’s history and current symptomatology and the December 2020 private provider, who based his opinion on a review of the complete record, interview with the Veteran, and mental and physical examination. The Board has no reason to question those opinions, and finds they support that he would be unable to maintain employment consistent with his education and work experience. In addition, the Board notes the treatment records and statements by the Veteran, discussed above, regarding the limitations caused by his service-connected psychiatric and physical disabilities. The February 2015 VA provider observed that the Veteran’s PTSD caused him to be isolative and avoidant of contact with anyone beyond his wife and mother, and even with them, was now more distant and subdued. Also, it was noted that his socialization skills had degraded to the point that he becomes overly reactive when presented with encounters with others and becomes very upset if UPS approaches his house, when he either hides or goes outside in an overly cautious/aggressive manner. Further the December 2020 provider indicated that there was no chance that the Veteran could work in a gainful occupation due to his severe PTSD symptoms which were marked by anger, irritability, low frustration tolerance, distrust of others, and emotional lability. The Board notes that the Veteran has a high school education, and the vast majority of his occupational experience is as a painter and drywaller, which does not easily translate to sedentary employment in a desk job. The Board further notes the Veteran’s consistent reporting in VA and private treatment records and in lay statements, that his PTSD has caused him to isolate (and at one point plant booby traps on his property), increased his distrust and dislike for people (except for immediate family), contributed to his inability to drive (due in part to his extreme, at times, road rage in which he admitted to running people off the road), and his persistent embarrassing symptoms of IBS. The Board notes the December 2014 VA examiner’s opinion that the Veteran’s PTSD were mild to moderate and that he would most likely be able to engage in some type of gainful employment, however, the opinion focuses primarily on PTSD symptoms and does not address the other service-connected disabilities. Although the October 2016 VA examiner opined that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency, he also noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation, which are all symptoms of greater severity than occupational impairment with occasional decrease in work efficiency. The examiner also opined that the Veteran was among a group of individuals that usually could work, although he would have crises during the course of employment, and did not elaborate on the severity of such crises. On review of the record the Board finds that the overall disability picture presented by the Veteran’s service-connected disabilities is one which is reasonably shown to now preclude him from maintaining any regular substantially gainful employment consistent with his education and experience. The Board notes that the Veteran has comorbid non-service-connected disabilities (notably a cervical spine disability) which likely substantially contribute to his unemployability, but finds that even disregarding the effects of such disability, he is nonetheless shown to be unemployable due solely to his [service-connected] disabilities. What is significant in this regard is that in addition to his psychiatric disability, which substantially impairs his ability to engage in the types of work consistent with his education and experience, (due to, as noted above, his extreme distrust of people outside his immediate family, irritability, and anger outbursts) his service-connected disabilities include IBS which has the potential to cause embarrassing events and disrupt effective job performance, and a shoulder disability which leads to discomfort. Treatment records reflect times when the Veteran appears to have symptomatology, especially with his PTSD, that increases and decreases in severity. Notably, in a 2019 VA risk assessment, he reported that he is outgoing and works well with others. However, there is no additional information in that record providing further explanation for such statement. Throughout, it has essentially been reported that he remained isolated except for venturing out at times with his wife and to go to therapy, and he does not mention other friends. He consistently reports that his support is limited to his family and VA providers. Considering the cumulative effect of the functional impairment flowing from the Veteran’s separate service-connected disabilities, the Board finds that they are now reasonably shown to be of a nature and severity that preclude him from participating in any regular substantially gainful employment consistent with his education and occupational experience. The criteria for establishing entitlement to a TDIU rating are met (see 38 C.F.R. §§ 4.3, 4.16); a TDIU rating is warranted. 2. The appeal seeking service connection for a cervical spine disability is dismissed. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination on the matter on appeal. 38 U.S.C. § 7105. An appeal may be withdrawn at any time before the Board promulgates a decision. Withdrawal may be made by the appellant, and must be in writing or on the record at a hearing. 38 C.F.R. § 19.55. In a January 2021 statement, the Veteran’s attorney withdrew his appeal seeking service connection for a cervical spine disability. Accordingly, there remain no allegations of error of fact or law for the Board to consider in this matter, and the Board no longer has jurisdiction to consider an appeal in the matter. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.