Citation Nr: 21032747 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-45 715 DATE: May 27, 2021 ORDER The appeal concerning entitlement to service connection for erectile dysfunction is dismissed. The appeal concerning entitlement to initial increased ratings for bilateral hearing loss, evaluated as 20 percent from September 30, 2014 and as 80 percent from April 19, 2017 is dismissed. The appeal concerning entitlement to an initial rating greater than 10 percent for tinnitus is dismissed. The appeal concerning entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) is dismissed. The appeal concerning entitlement to effective dates prior to September 30, 2014 for service connection for bilateral hearing loss and tinnitus is dismissed. For the period prior to September 30, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. For the period beginning September 30, 2014, entitlement to TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to an initial rating greater than 60 percent for coronary artery disease is remanded. For the period beginning March 15, 2017, entitlement to a separate rating for status post left carotid endarterectomy is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for acne is remanded. Entitlement to service connection for a right lung nodule is remanded. FINDINGS OF FACT 1. At the November 2020 hearing, the Veteran indicated that he wished to withdraw his appeal as to the following issues: service connection for erectile dysfunction; increased ratings for bilateral hearing loss, tinnitus, and PTSD; and effective dates for service connection for bilateral hearing loss and tinnitus. 2. The Veteran meets the schedular criteria for TDIU throughout the appeal period. 3. Prior to September 30, 2014, the Veteran was service connected for coronary artery disease only and the preponderance of the evidence is against finding that this disorder was so severe as to preclude all forms of substantially gainful employment. 4. Effective September 30, 2014, service connection was awarded for additional disabilities (bilateral hearing loss and tinnitus) and the evidence is at least in equipoise as to whether his service-connected disabilities in combination are so severe as to preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal as to entitlement to initial increased ratings for bilateral hearing loss, evaluated as 20 percent from September 30, 2014 and as 80 percent from April 19, 2017, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal as to entitlement to an initial rating greater than 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal as to entitlement to an initial rating greater than 50 percent for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal as to entitlement to effective dates prior to September 30, 2014 for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 7105; § 19.55. 6. For the period prior to September 30, 2014, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 7. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to TDIU have been met effective September 30, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to December 1969 and from January 1975 to October 1975. In November 2020, a virtual hearing was held before the undersigned Veterans Law Judge (VLJ). The Board acknowledges that the Veteran was previously represented by a private attorney. In April 2020, the attorney submitted to the Board a motion to withdraw as counsel citing an irreconcilable conflict making the continuation of representation impossible, impractical and/or unethical. The attorney provided good cause and indicated that the appellant was notified in writing. On review, the criteria for withdrawal as counsel have been met and the motion is granted herein. See 38 C.F.R. § 20.6. The Board further notes that in subsequent statements the Veteran indicated that he had fired his attorney, and he agreed to proceed without representation at the hearing. Appeals withdrawn 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the November 2020 hearing, the Veteran indicated that he wished to withdraw his appeal as to the following issues: service connection for erectile dysfunction; increased ratings for bilateral hearing loss, tinnitus, and PTSD; and earlier effective dates for service connection for bilateral hearing loss and tinnitus. Review of the transcript shows that Veteran's withdrawal was explicit, unambiguous, and done with the full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Thus, there remains no allegation of errors of fact or law for appellate consideration as concerns these issues. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. Entitlement to TDIU At the hearing, the Veteran reported that he has not worked since 2011. He contends that his service-connected disorders prevent him from working. The Board acknowledges that entitlement to TDIU was denied in April 2018 and the Veteran did not appeal this issue. Notwithstanding, the issue is being inferred pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (A claim of entitlement to TDIU is "part of," and not separate from, a claim of entitlement to an increased rating). 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). The Veteran is service connected for the following disorders: coronary artery disease status post left carotid endarterectomy (60 percent from January 25, 2012, 100 percent from March 15, 2017, and 60 percent from May 1, 2017); bilateral hearing loss (20 percent from September 30, 2014, and 80 percent from April 19, 2017); PTSD (50 percent from August 24, 2017); tinnitus (10 percent from September 30, 2014); painful scar chest wall (10 percent from November 9, 2017); and neck and chest scars (noncompensable from April 9, 2017). Combined rating is 60 percent (January 25, 2012); 70 percent (September 30, 2014); 100 percent (March 15, 2017); 90 percent (May 1, 2017); and 100 percent (August 24, 2017). The Veteran meets the schedular requirements for TDIU for the entirety of the appeal period. In considering entitlement to individual unemployability, the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his service-connected disabilities. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). In his February 2018 VA Form 21-8940, the Veteran reported that he last worked in December 2011 as a transportation supervisor. He reported one year of college. In March 2018, he reported that he was laid off in December 2011 due to job elimination. Information received from his employer indicates that he was a laundry supervisor. At the hearing, the Veteran testified that he was a transportation manager and his primary work at his last position (2007-2011) was administrative. He sometimes filled in for the truck drivers and he could no longer do the physical work. He had a few jobs after his position was eliminated in 2011, but they were all part-time and he was unable to do all that walking and climbing and had to resign because he could not do the work. He testified that if he could find a desk job where he could sit for 90 percent of the day, he might be able to do it; however, he indicated that he was unable to start in an entry level position as a truck driver due to his physical limitations and thus, was not able to work his way up to another administrative type position. He stopped looking for work about 4 or 5 years ago because he just cannot do it anymore. He further testified that his hearing loss affects his ability to work. Review of VA examinations shows the Veteran's service-connected disabilities impact employment. For example, the October 2013 VA examiner stated that the Veteran's heart condition would impact his ability to perform strenuous physical employment but not light duty or sedentary employment. The July 2017 VA examiner stated that the Veteran's heart condition limited his ability to perform tasks requiring prolonged walking and standing, repetitive heavy lifting, pushing, pulling, bending and kneeling due to symptoms of dizziness, fatigue, chest pain and shortness of breath on mild to moderate exertion. On VA PTSD examination in February 2018, the examiner stated that the Veteran's PTSD and alcohol abuse symptoms would create a significant impediment to his ability to successfully and consistently work a full-time job, but they did not preclude his ability to work in a job setting with limited public interface. On various VA examinations, the Veteran reported functional limitations related to his hearing impairment and tinnitus. For the period prior to September 30, 2014, the Veteran was service connected for only coronary artery disease. Evidence of record indicates that he was not able to engage in physically demanding work due to his heart disorder. The Veteran did have some experience in administrative work and the evidence suggests he could engage in this type of employment. By his own testimony he felt that if he could have found another desk job, he could probably do it. Thereafter, the Veteran was awarded service connection for hearing loss and tinnitus (from September 30, 2014) and then PTSD (from August 24, 2017). His ability to obtain and maintain office type employment was additionally limited by restrictions related to these disorders. Considering the Veteran's overall educational and occupational history, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities were so severe as to preclude all forms of substantially gainful employment. Resolving reasonable doubt in his favor, TDIU is granted effective September 30, 2014. 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to an initial rating greater than 60 percent for coronary artery disease status post left carotid endarterectomy In April 2014, VA granted service connection for coronary artery disease and assigned a 10 percent rating effective January 25, 2013. The Veteran disagreed with the rating and perfected this appeal. The effective date was subsequently changed to January 25, 2012. In April 2017, VA in effect granted service connection for status post left carotid endarterectomy and evaluated it as part of the coronary artery disease. A 100 percent rating was assigned effective March 15, 2017, based on the need for convalescence following surgery, and a 10 percent rating was assigned effective May 1, 2017. In July 2019, the rating was increased to 60 percent from January 25, 2012. At the hearing, the Veteran testified that he experiences shortness of breath with very little physical exertion. For example, walking to the mailbox will wear him out and he must sit down for 5 or 10 minutes. He essentially argued that a 100 percent rating was warranted based on limitation of METs (metabolic equivalents). On review, the Veteran most recently underwent a VA heart examination in July 2017. His testimony suggests worsening symptoms and a current examination is warranted. 38 C.F.R. § 3.327. The Board notes that in April 2020, VA proposed to sever service connection for the left carotid endarterectomy. To date, the proposed action has not yet been finalized. Thus, on remand the AOJ should consider whether separate ratings are warranted for coronary artery disease and for status post left carotid endarterectomy since March 15, 2017. In this regard, it is noted that the left carotid stenosis resulting in surgery is a distinct clinical entity from the Veteran's coronary artery disease. See VA opinion dated July 26, 2018. Entitlement to service connection for hypertension In April 2014, VA denied service connection for hypertension. The Veteran disagreed with the decision and perfected this appeal. He contends that his hypertension is secondary to service-connected coronary artery disease and/or related to Agent Orange exposure. At the hearing, the Veteran testified that a private doctor told him his hypertension was due to heart disease and further indicated that records from Dr. H. were possibly available at St. Francis Hospital. These records should be requested on remand. 38 C.F.R. § 3.159(c)(1). On review, a VA examination and opinion are needed to determine the nature and etiology of the Veteran's current hypertension. In this regard, it is noted that the Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not a disease presumptively associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Notwithstanding the presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In November 2018, the National Academy of Sciences moved hypertension from the "limited or suggestive" to "sufficient" evidence category for association with herbicides. See Veterans and Agent Orange: Update 11 (2018). Entitlement to service connection for acne Entitlement to service connection for a right lung condition In December 2016, VA denied service connection for acne and for a right lung condition, nodule. Thereafter, a timely notice of disagreement was received concerning this decision. See VA Form 21-0958, Notice of Disagreement, received December 27, 2016. A statement of the case (SOC) has not yet been issued regarding these issues nor is there any indication that the appeal is currently being processed by the agency of original jurisdiction (AOJ). A remand is required for the AOJ to issue a SOC addressing these issues. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease status post left carotid endarterectomy. 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. 2. Ask the Veteran to complete a VA Form 21-4142 for records from St. Francis Hospital (Dr. H.). Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for a VA examination for hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is it as least as likely as not that the Veteran's hypertension is proximately due to or aggravated (i.e., worsened beyond its natural progression) by service-connected coronary artery disease? (b) If the answer to (a) is negative, is the Veteran's hypertension at least as likely as not related to in-service exposure to herbicide agents? In making this determination, the examiner must consider and address the National Academy of Science's Agent Orange: Update 11 (2018), which upgrades hypertension from the category of "limited or suggestive" evidence of an association with herbicide exposure to the category of "sufficient" evidence. The examiner is further advised that service connection for a disease can be established on a direct basis as related to Agent Orange and is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). 4. Readjudicate the issue of entitlement to an initial increased rating for coronary artery disease and specifically consider whether separate ratings are warranted for coronary artery disease and residuals of left carotid endarterectomy effective March 15, 2017. 5. Send the Veteran and his representative, if any, a SOC that addresses the issues of entitlement to service connection for acne and a right lung condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.