Citation Nr: 21032435 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 20-27 674 DATE: May 27, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for a bilateral eye disorder is granted. Subject to the law and regulations governing payment of monetary benefits, a total disability rating based on individual unemployability based on service-connected PTSD effective September 22, 2017, is granted is granted. FINDINGS OF FACT 1. During the April 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the issue of entitlement to an initial rating in excess of 70 percent for PTSD. 2. The Veteran's IBS underwent a permanent increase in severity in service. 3. The Veteran's low back disorder had its onset in service. 4. The Veteran's bilateral eye disorder had its onset in service. 5. Since September 22, 2017, the Veteran's service-connected PTSD precludes substantially gainful employment. CONCLUSIONS OF LAW 1. The criterial for withdrawal of the appeal regarding entitlement to an initial rating in excess of 70 percent for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for IBS have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. 4. The criteria for service connection for a bilateral eye disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 5. Effective September 22, 2017, the criteria for grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2013 to January 2014 with additional prior and subsequent service in the United States Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from the August 2018 and January 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an April 2021 hearing. The Veteran's request for a 30-day hold to submit evidence after the hearing was granted. Dismissal 1. Entitlement to an initial rating in excess of 70 percent for PTSD. The Board may dismiss any appeal that 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. § 19.55. Withdrawals may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). During the April 2021 Board hearing, the Veteran withdrew from appeal the issue of entitlement to an initial rating in excess of 70 percent for PTSD. There remains no allegation of error of fact or law for appellate consideration with regard to the above-mentioned increased rating claim for PTSD and the issue must be dismissed. Service Connection Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 U.S.C. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 2. Entitlement to service connection for IBS. Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101 (23)(A). Reserves includes the National Guard. 38 U.S.C. § 101(26), (27). The evidentiary presumptions of sound condition at entrance to service and aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service do not extend to those whose service connection claim is based on a period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The Board finds that the Veteran's IBS pre-existed service, as evidenced by 2008 and 2011 service treatment records (STRs). See STRs dated May 2008 and September 2011. STRs confirm that the Veteran was on active duty for training on May 19, 2008, when she was found to have uncontrolled IBS induced by stress along with an upset stomach and an inability to eat. As a result, the Veteran was released from annual training and sent home. See May 2008, STR. A 2012 STR indicated the Veteran was directed to take IBS medication as needed. See March 2012, STR. During a May 2018 VA examination, the Veteran reported IBS symptoms started in 2003 or 2004 with abdominal cramps from exercise, stress, and certain foods. She further stated IBS symptoms worsened to bowel movements limited to twice per week with hard ball like stools; more or less constant abdominal distress; more than seven episodes of exacerbations with daily distension, constipation, and nausea in the past 12 months; pain; occasional diarrhea; and the need for continuous medication to manage IBS symptoms. See May 2018, VA examination. At the April 2021 Board hearing, the Veteran testified that IBS worsened while on active duty due to in-service stress. Specifically, the Veteran stated as her service-connected PTSD increased in severity so did the frequency of her IBS. See April 2021, Board hearing. The Board notes that an April 2018 VA examination for mental health disorders indicated that IBS is relevant to managing PTSD. Additionally, PTSD symptoms include, but are not limited to, stress, anxiety, panic attacks that occur weekly or less often, and irritability. See April 2018, VA examination. The Board acknowledges that the October 2018 VA examiner provided a negative nexus opinion. However, the Board finds the testimony of the Veteran regarding the aggravation of IBS symptoms during service and her symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's IBS underwent a permanent increase in severity in service. Thus, service connection for IBS is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a low back disorder. Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309(a) if the evidence shows (1) that the disability manifested to a compensable degree within one year after separation from service, or (2) a continuity of symptomatology since leaving service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, and 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Veteran contends low back pain began during service has been continuous since discharge from active service. See April 2021, Board hearing. Service treatment records (STRs) indicate the Veteran's complaints of low back pain beginning in July 2013. See July 2013, STR. Post-service treatment records show a diagnosis of degenerative arthritis of the spine. See May 2018, VA examination. In 2017 and 2019, the Veteran reported severe, sharp back pain with an onset during service that has worsened since discharge. See VA treatment records dated April 2019 and June 2019; September 2017, STR; July 2017, Private treatment record. In light of the evidence of record, the Board finds that service connection for a low back disorder is warranted. The Board notes the competent and credible lay evidence, including the Veteran's testimony, that low back pain began during active service and has been continuous since discharge. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno; Jandreau. The Board acknowledges the May 2018 VA examiner's negative nexus opinion. The Board, however, accords little probative weight to the VA examiner's opinion as the evidence of record, including STRs and the Veteran's April 2021 Board testimony, indicates low back pain began during service in July 2013 and has been continuous since discharge from active service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the lay and medical evidence of record, the Board concludes that the evidence shows the Veteran's back disorder became manifest while she was on active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Resolving all reasonable doubt in the Veteran's favor, service connection for a low back disorder is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for a bilateral eye disorder. The Veteran contends eye problems, to include blurry vision and floaters, began during service and have continued to worsen since discharge from active service. See April 2021, Board hearing. Service treatment records (STRs) indicate the Veteran's multiple complaints of and treatment for bilateral blurry/hazy/cloudy vision, floaters occurring three times per week, and dry eyes. During active duty, bilateral dry eye syndrome and vitreous floaters were diagnosed. See STRs dated September 2013, November 2013, December 2013, and January 2014. Post-service treatment records show a diagnosis of bilateral ocular hypertension. See January 2019, VA treatment records. Treatment records also indicate the Veteran's continued complaints of blurry vision and floaters. Id. At the April 2021 Board hearing, the Veteran testified that she began having trouble with her eyes around November 2013, to include blurry vision and floaters. After discharge from service, the Veteran stated she continued to have vision problems that worsened over time. See April 2021, Board hearing. In light of the evidence of record, the Board finds that service connection for a bilateral eye disorder is warranted. The Board notes the competent and credible lay evidence, including the Veteran's testimony, that that vision problems, to include floaters and blurriness began during active service and has been continuous since discharge. See Charles, 16 Vet. App. at 374 (2002); see also Layno, 6 Vet. App. 465; Jandreau, 492 F.3d 1372. The Board concludes that the evidence shows the Veteran's bilateral eye disorder became manifest while she was on active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Resolving all reasonable doubt in the Veteran's favor, service connection for a bilateral eye disorder is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU 5. Entitlement to TDIU effective September 22, 2017. The Veteran asserts that service-connected PTSD prevent her from obtaining and retaining substantially gainful employment. See April 2021, Board hearing; January 2018, VA Form 21-8940. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to their age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran's service-connected PTSD is rated 70 percent effective September 22, 2017; thus, the criteria set forth in 38 C.F.R. § 4.16(a) is satisfied. In adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). After review of the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected PTSD prevents her from securing and following substantially gainful employment. In this regard, the Veteran has credibly reported that she completed four years of college and two years of law school before she had to drop out because she could not remember anything due to service-connected PTSD. The Veteran last worked full time in July 2017 as a claims adjuster wherein she could set her own hours but was not able to work with the drivers due service-connected PTSD. The Veteran also testified that PTSD prevents her from focusing, causes panic attacks, problems concentrating, and has difficulty coping. See April 2021, Board hearing. A September 2017 private treatment record, as well as VA examinations dated April and December 2018, indicate the following functional limitations of service-connected PTSD: severe depression, high levels of irritability, fear and anger, excessive worry, trouble focusing/concentrating, mood swings, panic attacks, suspicion of others, difficulty understanding complex commands, disturbances in mood and motivation, difficulty with social and work relationships, difficulty adapting to stress, chronic sleep impairment (including restlessness and tiredness), and mild memory loss. See VA examinations dated April and December 2018; September 2017, Private treatment record. In light of the evidence of record, the Board finds service-connected PTSD prevents the Veteran from obtaining and maintaining substantially gainful employment. The Board notes that the determination of whether a Veteran is unable to secure or follow substantially gainful occupation due to service-connected disabilities is a factual question rather than a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Additionally, the Board affords significant probative value to the medical opinions regarding the Veteran's decreased concentration, memory loss, chronic sleep impairment, excessive worry, panic attacks, high level of irritability, and difficulty understanding complex commands, which would be vital in sedentary, non-sedentary, skilled, or unskilled labor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an award of TDIU is warranted effective September 22, 2017. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.