Citation Nr: 22011817 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-28 397 DATE: March 2, 2022 ORDER Entitlement to service connection for chronic sinusitis is granted on a presumptive basis as due to exposure to particulate matter. Entitlement to service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger is granted. Entitlement to service connection for deviated nasal septum is granted. Entitlement to service connection for dental disability for compensation purposes is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran served in Southwest Asia, Afghanistan, and Uzbekistan during the Persian Gulf War. 2. The Veteran is presumed exposed to fine, particulate matter during service in Southwest Asia/Afghanistan/Uzbekistan during the Persian Gulf War. 3. The Veteran's chronic sinusitis became manifest to a degree within 10 years from his date of separation from military service in Southwest Asia/Afghanistan/Uzbekistan. 4. The Veteran's residuals of dislocation of the proximal interphalangeal joint of the left index finger began during active service. 5. The evidence is at least evenly balanced as to whether the Veteran's deviated nasal septum began during active service. 6. The evidence of record persuasively weighs against finding that the Veteran has had any dental symptoms recognized as a disability for VA compensation purposes at any time during or approximate to the pendency of his claim. 7. Since August 6, 2015, the Veteran has been service-connected for the following disabilities: posttraumatic stress disorder (PTSD) with secondary depressive disorder and alcohol dependence, rated 70 percent disabling, from August 6, 2015; obstructive sleep apnea with dyspnea, rated 50 percent disabling, from October 9, 2015; fibromyalgia, rated 20 percent disabling, from August 6, 2015 through September 21, 2017, and 40 percent disabling, from September 22, 2017; irritable bowel syndrome with gastroesophageal reflux disease (GERD) and acid reflux, rated 10 percent disabling, from August 6, 2015 through September 21, 2017, and 30 percent disabling, from September 22, 2017; left shoulder impingement syndrome with glenohumeral joint osteoarthritis and rotator cuff tendonitis status post rotator cuff tear, rated 10 percent disabling, from August 6, 2015 through July 28, 2016, and 20 percent disabling, from July 29, 2016; tinnitus, rated 10 percent disabling, from August 6, 2015; intervertebral disc syndrome, rated 10 percent disabling, from September 22, 2017; right lower extremity radiculopathy of the sciatic nerve, rated 10 percent disabling, from September 22, 2017; right lower extremity radiculopathy of the femoral nerve, rated 10 percent disabling, from September 22, 2017; erectile dysfunction, rated noncompensable, from August 6, 2015; and hearing loss, rated noncompensable, from October 9, 2015; the Board is also awarding service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger, deviated nasal septum, and chronic sinusitis and the agency of original jurisdiction (AOJ) will assign initial disability ratings in a future decision; the Veteran's combined disability rating is currently 80 percent from August 6, 2015 through October 8, 2015, 90 percent from October 9, 2015 through September 21, 2017, and 100 percent from September 22, 2017. 8. The Veteran's service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic sinusitis are met on a presumptive basis as due to exposure to particulate matter. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.2 (i), 3.102, 3.303, 3.317(e)(2); 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. 2. The criteria for service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for deviated nasal septum are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 5. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from at least March 2003 to March 2005, December 2008 to April 2009, and September 2010 to December 2010. He had additional service with the Air National Guard, to include a period of active duty for training (ACDUTRA) from June 1999 to November 1999 and periods of deployment to the Southwest Asia theater of operations, among other locations, both prior to and since December 2010. These matters initially came before the Board of Veterans' Appeals (Board) from a January 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a November 2019 hearing and a transcript of the hearing has been associated with his claims file. In January 2020, the Board expanded the appeal to include the issue of entitlement to a TDIU, as part and parcel of the appeal for a higher initial rating for service-connected PTSD with depressive disorder and alcohol dependence. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board remanded the TDIU issue, as well as the remaining issues currently on appeal, for further development. Specifically, the Board instructed the AOJ to, among other things, provide the Veteran with notice as to the information and evidence required to substantiate a claim for a TDIU; ask the Veteran to report his employment history and earnings (to include any periods of self-employment), especially for the period since August 2015; ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records; and obtain all outstanding VA treatment records. Pursuant to the Board's remand, the Veteran was given notice as to the information and evidence required to substantiate a claim for a TDIU, asked to report his employment history and earnings (to include any periods of self-employment, especially for the period since August 2015), and asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a June 2020 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Moreover, all outstanding VA treatment records were obtained and associated with the claims file and the AOJ re-adjudicated the remaining issues on appeal in a May 2021 decision and a May 2021 supplemental statement of the case. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for sleep apnea and respiratory disability, and the Board remanded these issues in January 2020 for further development. A Decision Review Officer (DRO) awarded service connection for obstructive sleep apnea with dyspnea (claimed as sleep apnea and respiratory problems) in the May 2021 decision, and thereby resolved the appeal as to these issues. I. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "Active military, naval, air, or space service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for chronic sinusitis Effective August 5, 2021, VA issued an interim final rule amending its adjudication regulations and establishing presumptive service connection for three chronic respiratory health conditions, to include sinusitis, in association with presumed exposures to fine, particulate matter. These presumptions apply to veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. A qualifying disease shall be service-connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. The Persian Gulf War began on August 2, 1990, and the Southwest Asia theater of operations encompasses Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. 38 C.F.R. §§ 3.2 (i), 3.317(e)(2). The Veteran's service records reflect that in the years following his March 2003 entrance into active service, he served on active duty in Saudi Arabia, Qatar, Oman, Kuwait, Uzbekistan, and Afghanistan, to include as late as July 2012. Thus, the Veteran has periods of service that qualify for the presumption as a result of his military service in Southwest Asia, Afghanistan, and Uzbekistan. The Veteran is therefore presumed exposed to fine, particulate matter during such service, and there is no affirmative evidence to establish he was not exposed to fine, particulate matter during such service. During a March 2021 VA sinusitis/rhinitis examination, the Veteran reported that he began to experience sinus symptoms during service in approximately 2004 or 2005 and that he continued to experience frequent sinus infections in the years since that time. He experienced sinus drainage, facial pressure and pain, and headaches, and was diagnosed as having chronic sinusitis. Therefore, the Veteran's sinusitis became manifest to a degree within 10 years from the date of his qualifying period(s) of service in Southwest Asia/Uzbekistan/Afghanistan as shown by his reports of sinus symptoms beginning in 2004/2005 and continuing in the years since that time. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "facts found" and "the date on which the evidence is submitted is irrelevant"); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). In May 2021, a VA nurse practitioner reviewed the Veteran's claims file and opined that his claimed nasal disability (to include sinusitis) was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She reasoned, in relevant part, that the Veteran had one acute episode of sinusitis during service in April 2003, but that the claims file was silent for any further complaints, treatment, or diagnosis of any sinus condition until 2016, which was 4 years after his period of active service. A qualifying disease will not be presumed service-connected if there is affirmative evidence that (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n)(1). In this case, there is no affirmative evidence that the disease was not incurred in service. The May 2021 negative nexus opinion was made without knowledge of the presumption and the studies underlying it and therefore is not probative and cannot overcome the presumption. There is also no evidence that the disease was caused by a supervening condition or event or is the result of the Veteran's willful misconduct. As the Veteran's chronic sinusitis manifested to a degree within 10 years of his qualifying period(s) of service in Southwest Asia/Afghanistan/Uzbekistan during the Persian Gulf War, and he is presumed to have been exposed to particulate matter based on this service, entitlement to service connection for chronic sinusitis is warranted on a presumptive basis. 2. Entitlement to service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger The Veteran contends that he has current left index finger disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of residuals of dislocation of the proximal interphalangeal joint of the left index finger, and that this disability began during active service. A March 2021 VA hand and fingers examination report indicates that the Veteran experiences left hand pain and stiffness and has been diagnosed as having residuals of dislocation of the proximal interphalangeal joint of the left index finger. Therefore, current left index finger/hand disability has been demonstrated. There is also evidence of a left index finger injury during active service and evidence of continuous symptoms in the years since service. In this regard, the Veteran's service records reveal that on September 9, 2006, he injured his left index finger while playing basketball. X-rays revealed a dislocation at the proximal interphalangeal joint which penetrated the skin, the dislocation was reduced, and the skin was sutured and the wound dressed. This injury occurred during a period of ACDUTRA/INACDUTRA (Unit Training Assembly/Drill) (see an August 2020 "Report of General Information" form (VA Form 27-0820)). Moreover, the Veteran's post-service medical records and lay statements indicate that his left index finger/hand symptoms have continued in the years since the September 2006 injury. The Veteran is competent to report continuous left index finger/hand symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there no evidence that explicitly contradicts the Veteran's reports and his reports are generally consistent with the evidence of record. Therefore, the Board concludes that his reports of continuous left index finger/hand symptoms in the years since service are credible. The examiner who conducted the March 2021 VA hand and fingers examination opined that the Veteran's claimed left index finger disability was likely ("at least as likely as not"/"50 percent or greater probability") incurred in or caused by service. The examiner reasoned that the Veteran had no issues related to the left index finger prior to service, that the currently diagnosed dislocation was related to the injury to his finger, that there was evidence of chronicity, and that a nexus had been established. The Veteran had been unable to bend his finger and experienced decreased grip and numbness ever since the injury. The March 2021 opinion is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced a left index finger injury during active service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having residuals of dislocation of the proximal interphalangeal joint of the left index finger, and there is a probative medical opinion that this disability is related to his finger injury in service. Thus, the evidence reflects that the current left index finger disability had its onset in service, and entitlement to service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for deviated nasal septum The Veteran contends that he has current nasal disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of deviated nasal septum, and that the evidence is at least evenly balanced as to whether this disability began during active service. Medical records, including a June 2016 VA otolaryngology consultation note, indicate that the Veteran has been diagnosed as having deviated nasal septum. Therefore, current deviated nasal septum has been demonstrated. Additionally, there is evidence of a nasal injury in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he sustained a broken nose during one of his deployments when he was hit in the face by a fellow service member while working on a landing gear well. As explained above, the Veteran's service records reflect that he served in Southwest Asia and Afghanistan during various periods. Also, he and a fellow service member (see e.g. a statement from J.S. received in April 2017) have reported on various occasions that the Veteran's unit was attacked by enemy rocket and mortar fire during his deployments. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran and his fellow service member are competent to report their exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts these reports. Therefore, the Board finds that the reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Southwest Asia and Afghanistan. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran's reports of a nasal injury in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Southwest Asia and Afghanistan. There is no clear and convincing evidence to the contrary. Therefore, the presence of a nasal injury during service is established. Moreover, the Veteran's post-service medical records and lay statements essentially indicate that he has experienced continuous deviated nasal septum symptoms in the years since service. The Veteran is competent to report continuous deviated nasal septum symptoms in the years since service. Buchanan, 451 F.3d at 1337. Also, there is no evidence that explicitly contradicts his reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that the Veteran's reports of continuous deviated nasal septum symptoms in the years since service are credible. In May 2021, a VA nurse practitioner reviewed the Veteran's claims file and opined that his claimed deviated nasal septum was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She reasoned, in pertinent part, that a 2009 VA treatment record showed "midline septum after reported 'elbow in the face' in 2004/2005." The claims file was then silent for any further complaints, treatment, or diagnosis of any deviated septum condition until 2016, which was 4 years after the Veteran's separation from active service. Although there were reports of a history of nasal trauma in the Veteran's treatment records, there was no objective evidence to support that the Veteran had a history of nasal trauma. Specifically, there was no evidence to support the Veteran's statement that he was elbowed in the face and smashed his nose in service. The May 2021 opinion is of little, if any, probative value because it is entirely based on the absence of clinical evidence of treatment for a nasal injury in service or for years following service, and does not take into account the Veteran's competent and credible reports of a nasal injury in service and continuous symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, to the extent that the May 2021 opinion was based on a lack of report of a nasal injury during service, this is precisely the reasoning that the combat law was designed to prevent. In sum, the evidence reflects that the Veteran experienced a nasal injury in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current deviated nasal septum. There is no adequate medical opinion contrary to a conclusion that the current deviated nasal septum had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for deviated nasal septum is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). 4. Entitlement to service connection for dental disability for compensation purposes Service connection for dental disabilities for compensation purposes is only available for dental disabilities that are the result of osteomyelitis or osteoradionecrosis, or due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or due to the loss of teeth due to loss of substance of the upper or lower jaw. 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). Compensation is not available for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, or periodontal disease. 38 C.F.R. § 3.381. In this case, the Veteran contends that he has current dental disability that is related to injury sustained in service. Specifically, he has reported that he sustained a broken tooth in service when he was elbowed in the face by a fellow service member and that he has continued to experience dental symptoms in the years since service. The question for the Board is whether the Veteran has current dental disability for compensation purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that the Veteran does not experience any dental symptoms recognized as a disability for VA compensation purposes, and has not experienced such symptoms at any time since his service connection claim was received in August 2015 or prior thereto. Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's medical records (including his service treatment records) reflect that he has been treated for dental problems. While he is competent to report his current dental symptoms and the Board has no legitimate basis to challenge the credibility of his contentions, he has not reported and his treatment records do not indicate the presence of or treatment for any of the dental disabilities specified in 38 C.F.R. § 4.150 at any time during the claim period or prior thereto. In particular, a VA dental examination was conducted in September 2020. The examiner who conducted the examination diagnosed the Veteran as having partial loss of tooth. The examiner explained that the Veteran was elbowed in the face during service and that this caused his tooth to break. He underwent root canal therapy and post/core to repair his tooth. Examination revealed that the Veteran had some missing teeth and that he had restoration done on tooth #9, but never had a crown placed after root canal therapy. The loss of teeth was not due to loss of substance of body of maxilla or mandible without loss of continuity and was not due to trauma or disease (such as osteomyelitis). The masticatory surfaces could be restored by suitable prosthesis. Moreover, the examiner who conducted the September 2020 examination did not indicate that the Veteran had lost any part of the mandible (to include the ramus), maxilla, or hard palate, that he had any injury resulting in malunion or nonunion of the mandible or maxilla, or that he was experiencing or had ever experienced any osteomyelitis or osteoradionecrosis. In sum, there is no evidence that the Veteran has experienced dental disability for VA compensation purposes at any time during the claim period. As the evidence does not show any current dental problems that are the result of osteomyelitis or osteoradionecrosis, are due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or are due to the loss of teeth due to loss of substance of the upper or lower jaw, the Veteran is not shown to have dental disability subject to compensation under the laws and regulations administered by VA. Thus, although he has reported dental problems, the Board is bound by these limitations as to what constitutes a dental disability for VA compensation purposes and has no discretion in this regard. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, the evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, service connection for dental disability for compensation purposes is not warranted because there is no evidence of current dental disability upon which to predicate such an award. Accordingly, the Board finds that service connection for dental disability for compensation purposes is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, for the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for dental disability for compensation purposes is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran's service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. As a preliminary matter, the Board points out that the AOJ sent a letter to the Veteran in June 2020. This letter asked him to complete an updated VA Form 21-8940 and to report his employment history and earnings. A copy of VA Form 21-8940 was included with the letter. The Veteran failed to respond to this letter, did not submit any updated VA Form 21-8940, and has not otherwise provided any of the requested updated information pertaining to his complete employment history or earnings during the claim period (to include any periods of self-employment). As explained above, the Veteran's claim for a TDIU was raised as part and parcel of his appeal for a higher initial rating for service-connected PTSD with depressive disorder and alcohol dependence. Therefore, the claim period for the TDIU claim dates back to the August 6, 2015 effective date of service connection for PTSD with depressive disorder and alcohol dependence. Since August 6, 2015, the Veteran has been service-connected for the following disabilities: PTSD with secondary depressive disorder and alcohol dependence, rated 70 percent disabling, from August 6, 2015; obstructive sleep apnea with dyspnea, rated 50 percent disabling, from October 9, 2015; fibromyalgia, rated 20 percent disabling, from August 6, 2015 through September 21, 2017, and 40 percent disabling, from September 22, 2017; irritable bowel syndrome with GERD and acid reflux, rated 10 percent disabling, from August 6, 2015 through September 21, 2017, and 30 percent disabling, from September 22, 2017; left shoulder impingement syndrome with glenohumeral joint osteoarthritis and rotator cuff tendonitis status post rotator cuff tear, rated 10 percent disabling, from August 6, 2015 through July 28, 2016, and 20 percent disabling, from July 29, 2016; tinnitus, rated 10 percent disabling, from August 6, 2015; intervertebral disc syndrome, rated 10 percent disabling, from September 22, 2017; right lower extremity radiculopathy of the sciatic nerve, rated 10 percent disabling, from September 22, 2017; right lower extremity radiculopathy of the femoral nerve, rated 10 percent disabling, from September 22, 2017; erectile dysfunction, rated noncompensable, from August 6, 2015; and hearing loss, rated noncompensable, from October 9, 2015. The Board is also awarding service connection for residuals of dislocation of the proximal interphalangeal joint of the left index finger, deviated nasal septum, and chronic sinusitis and the AOJ will assign initial disability ratings in a future decision. The Veteran's combined disability rating is currently 80 percent from August 6, 2015 through October 8, 2015, 90 percent from October 9, 2015 through September 21, 2017, and 100 percent from September 22, 2017. Hence, he meets the percentage requirements for a TDIU during the entire claim period. See Id. The remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. A November 2013 VA mental health outpatient physician note, the reports of VA back, shoulder, and male reproductive system conditions examinations dated in October 2015, VA treatment records dated from October 2015 to September 2018, the reports of VA psychiatric, gastrointestinal, fibromyalgia, shoulder, esophageal, and neurological examinations dated in October 2018, a January 2019 VA caregiver certificate note, a March 2019 Intestinal Conditions Disability Benefits Questionnaire, a November 2019 VA intestinal conditions examination report, the Veteran's testimony during the November 2019 Board hearing, a November 2019 "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940), VA treatment records dated from August 2020 to February 2021, and the reports of VA nasal, sleep apnea, respiratory, sinusitis, and hand/finger examinations dated in March 2021 indicate that the Veteran has a Bachelors Degree in organizational leadership, an Associates Degree in applied aircraft science, and a Board of Governor's degree. After service, he worked as a full time federal technician with the Air National Guard, as a lead installer for a construction company, and full time in home telehealth for a federal agency. He experienced some problems at his federal employment due to his psychiatric symptoms (e.g., irritability, depression, cognitive issues, a desire to remain away from other people, and lack of motivation) and began to develop his own construction business. He resigned from his position at the federal agency in approximately July 2018, but continued to run his well established and successful construction/contracting business. He was working 7 days per week and had steady business at the time of a September 2018 VA mental health outpatient evaluation, but reported during the October 2018 VA psychiatric examination that he only checked on things "1-2 days per week" and reported during the January 2019 VA caregiver certificate evaluation that he worked 5 hours per week checking on job sites. As for the symptoms of the Veteran's service-connected disabilities, he experienced back and left shoulder pain, limited motion of the thoracolumbar spine and left shoulder, erectile dysfunction, frequent diarrhea, rectal bleeding, nausea, vomiting, regurgitation, heartburn, bloating, abdominal distension and pain, fatigue, paresthesias, headaches, Raynaud-like symptoms, sinus drainage, facial pressure and pain, persistent daytime hypersomnolence, shortness of breath, a dry cough, left hand pain and stiffness, decreased hand grip, hearing loss, tinnitus, and muscle and joint pain, stiffness, and weakness in the back and bilateral upper and lower extremities. Moreover, he experienced anxiety, depression, low energy, intrusive thoughts and nightmares of traumatic events in service, hypervigilance, a hyperstartle response, panic attacks, irritability, impatience, impaired impulse control, avoidance of crowds, impaired concentration and memory, markedly diminished interest or participation in significant activities, feelings of detachment of estrangement from others, a persistent inability to experience positive emotions, impaired sleep, tearfulness, word finding difficulties, reckless or self-destructive behavior, a flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a work like setting). At the time of the October 2018 VA examinations, the Veteran reported that he had lost 1 to 2 weeks of work during the previous 12 months due fibromyalgia and left shoulder disability. His left shoulder disability impaired his ability to lift his arms to reach or work overhead and weakness impaired his ability to lift. His fibromyalgia resulted in frequent episodes of joint pain, stiffness, and fatigue that interfered with his daily activities (including increased physical activity during strenuous work). Also, his irritable bowel syndrome resulted in abdominal pain, nausea, and diarrhea during periods of exacerbation, and he reported during the November 2019 VA intestinal conditions examination that he missed work up to 5 times per month due to these symptoms. At the time of the March 2021 VA examinations, he reported that he remained employed as a construction worker and lost 0 to 1 weeks of work during the previous 12 months. His sinusitis, sleep apnea, dyspnea, and left index finger disability impacted his ability to work in that frequent sinusitis resulted in drainage and nausea that caused him to have difficulty working with drywall dust, chemicals, and sawdust. Also, his sleep apnea resulted in fatigue, his dyspnea caused him to experience difficulty cutting, performing flooring work, and working with dry wall dust, and his left index finger disability made it difficult to grip things. The Veteran is competent to report that his service-connected disabilities preclude him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Nevertheless, the evidence supports a finding that his service-connected disabilities do not preclude him from securing and following substantially gainful employment. The Board acknowledges that his service-connected disabilities have resulted in significant functional impairments, have impacted his ability to perform occupational tasks, and have resulted in lost time from work. However, the evidence does not indicate that he is unemployed and unable to secure or follow any substantially gainful occupation due to service-connected disabilities. Rather, the evidence reflects that he has been employed in various positions for varying periods of time and the most recent evidence of employment (the March 2021 VA examination reports) indicate that he has continued to work in construction. Hence, despite the occupational limitations and impairments caused by his service-connected disabilities, he has maintained the ability to perform substantially gainful employment and is apparently still employed. As explained above, the January 2020 Board remand instructed the AOJ to seek clarification from the Veteran as to his employment history and earnings (to include any periods of self-employment), especially for the period since August 2015. This was necessary because the Veteran reported on the November 2019 VA Form 21-8940 that he last worked in July 2018, but he did not provide any further information as to the extent of his self-employment in construction in the years following July 2018 (which is documented in his treatment records, as noted above). Pursuant to the Board's remand, the AOJ sent a letter to the Veteran in June 2020 and asked him to complete a new VA Form 21-8940, on which he could specify his complete earnings and employment history. The Veteran failed to respond to the letter, did not submit any updated VA Form 21-8940, and has not otherwise provided any updated information pertaining to his employment history or his current employment status, as requested in the Board's January 2020 remand and the June 2020 letter. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Moreover, "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's lack of response in this regard has resulted in a lack of evidence in support of his claim. Overall, the evidence persuasively weighs against a finding that the Veteran's service-connected disabilities prevent him from securing and following all substantially gainful employment consistent with his education and occupational experience. Although his service-connected disabilities have resulted in significant work impairments, his own reports and the above lay and medical evidence support a finding that his service-connected disabilities (either individually or collectively) do not result in an inability to secure and follow substantially gainful employment. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a TDIU is warranted. Rather, the evidence persuasively weighs against entitlement to a TDIU. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.