Citation Nr: 22012271 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-59 016 DATE: March 3, 2022 ORDER Entitlement to service connection for a respiratory condition, to include pulmonary fibrosis, is dismissed. Entitlement to an effective date prior to October 10, 2013, for service connection of the residuals of a traumatic brain injury (TBI) is denied. Effective October 10, 2013, entitlement to a separate noncompensable evaluation for headaches as a residual of TBI is granted. Entitlement to an initial rating in excess of 70 percent for residuals of a TBI is denied. Entitlement to a 20 percent rating, and no higher, from September 1, 2008, for internal hemorrhoids with pruritis ani is denied. Entitlement to 10 percent rating, and no higher, from September 1, 2008, until June 5, 2018, for impaired rectal sphincter control associated with internal hemorrhoids is denied. Entitlement to rating in excess of 30 percent since June 5, 2018, for impaired rectal sphincter control associated with internal hemorrhoids is denied. Entitlement to a finding of total disability due to individual unemployment prior to October 10, 2013, is denied. FINDINGS OF FACT 1. The Veteran properly opted his claim for compensation for a respiratory condition into the modernized review system in April 2020. The claim was fully adjudicated in the modernized review system in March 2021. 2. The April 1977 denial of service connection for residuals TBI is final, as is the November 2008 rating decision denying re-opening of the Veteran's claim for service connection for TBI. 3. At the time of the Veteran's October 10, 2013, claim for service connection for residuals of a TBI, there were no prior unadjudicated claims for compensation for this disability. 4. Since October 10, 2013, the Veteran's TBI-related headaches have manifested by no worser than daily nonprostrating attacks which have little or no impact on occupational function. 5. The residuals of the Veteran's TBI manifests in symptoms including motor actively moderately decreased due to apraxia, but there is not total impairment in any of the relevant facets. 6. Since September 1, 2008, the Veteran's hemorrhoids have manifested in symptoms most closely approximating persistent bleeding with secondary anemia or fissures. 7. From September 1, 2008, until June 5, 2018, the Veteran's impaired rectal sphincter control associated with internal hemorrhoids most closely approximated constant slight or occasional moderate leakage. 8. Since June 5, 2018, the Veteran's impaired rectal sphincter control associated with internal hemorrhoids has most closely approximated occasional involuntary bowel movements, necessitating wearing of a pad. 9. Prior to October 10, 2013, the evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. As the claim for service connection for a respiratory condition has been opted out of the legacy appeals system and fully adjudicated in the appeals modernization system, there remains no question of law or fact for the Board to resolve with respect to the claim for service connection of a respiratory condition, to include pulmonary fibrosis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an effective date of service connection prior to October 10, 2013, for TBI have not been met. 38 U.S.C. § 5100, 5017; 38 C.F.R. § 3.114, 3.151, 3.400. 3. The criteria for a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8045-8100. 4. The criteria for entitlement to a disability rating in excess of 70 percent for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045. 5. Since September 1, 2008, the criteria for a 20 percent rating for hemorrhoids, and no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code 7336. 6. Since September 1, 2008, and until June 5, 2018, the criteria for a 10 percent rating, and no higher, for impaired rectal sphincter control associated with internal hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.21, 4.1, 4.3, 4.7, Diagnostic Code 7336-7332. 7. Since June 5, 2018, the criteria for a 30 percent rating, and no higher, for impaired rectal sphincter control associated with internal hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.21, 4.1, 4.3, 4.7, Diagnostic Code 7336-7332. 8. Prior to October 10, 2013, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1960 to December 1960 and December 1975 to April 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2008, June 2014, March 2018, rating decisions by the agency of original jurisdiction (AOJ). These matters have been remanded several times by the Board, and most recently by the Court of Veterans Appeals (Court), in April 2021 and June 2021, on the basis of joint motions for remand. Pursuant to the April 2021 joint motion for partial remand (JMPR), the Court vacated three of the four issues that had been decided in a June 2020 Board decision. Specifically, the issues of service connection for a respiratory disorder, an effective date for service connection of TBI with headaches and an initial evaluation in excess of 70 percent for TBI with headaches were remanded for readjudication. The grant of TDIU on the basis of the effects of all Veteran's service-connected disabilities since October 10, 2013, was not disturbed. As a preliminary matter, the Veteran, through his representative, contends that he is entitled to a finding of TDIU based upon TBI alone. However, this issue is not before the Board. The April 2021 Court order was a partial remand, not a complete vacatur of the June 2020 Board decision. The Court's April 2021 order did not disturb the Board's June 2020 decision that the Veteran's TDIU was based on the cumulative effect of all of his service-connected disabilities, and not solely on his TBI. Consequently, the Board will not further address this issue here. Dismissal The Veteran initially filed a claim for service connection for a respiratory disorder, to include pulmonary fibrosis, in September 2008. A rating decision was issued under the legacy system in November 2008, and the Veteran filed a timely notice of disagreement (NOD). In April 2020, the AOJ issued a supplemental statement of the case (SSOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a timely VA Form 10182, Decision Review Request: Board Appeal (NOD) identifying the April 2020 SSOC. However, the Board issued a June 2020 decision under the legacy system denying the Veteran's claim for service connection for a respiratory condition. This decision was appealed to the Court, and in April 2021, the Court vacated and remanded the June 2020 Board decision for failure to address whether the Board had jurisdiction to decide the claim under the legacy system. The procedural defect raised by the April 2021 order was cured by the October 2020 Board decision, in which the Board found that the Veteran had properly opted into the AMA system, and remanded the claim for additional development pursuant to 38 C.F.R. § 20.802. A March 2021 rating decision denied the Veteran's claim for service connection for a respiratory condition, to include pulmonary fibrosis. As the Veteran's claim for service connection for a respiratory condition has been adjudicated in AMA, there remains no specific error of fact or law on appeal for the Board to adjudicate under the legacy system. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, the Board finds that the criteria to dismiss the appeal are met. 38 U.S.C. § 7105. Earlier Effective Date This issued was remanded by the Court in April 2021, pursuant to a JMPR, to address the Veteran's argument that he is entitled to an earlier effective date for service connection of his TBI with headaches on the basis that his September 15, 2008, sleep apnea compensation claim should have been construed as a compensation claim for TBI as well. Specifically, the Veteran contends that the appropriate effective date for service connection is no later than September 15, 2008, because his claim for service connection for sleep apnea encompassed the "causal disability" of an in-service traumatic brain injury. The Veteran first filed a claim for service connection for TBI in May 1976. That claim was denied in April 1977. The Veteran did not appeal the denial, and the decision became final. In September 2008, the Veteran submitted a claim for service connection for sleep apnea and TBI, along with several other issues. In a November 2008 rating decision, the AOJ denied service connection for sleep apnea and denied reopening of the Veteran's claim for service connection for TBI, finding that the Veteran had not submitted new and material evidence. In October 2009, the Veteran filed a notice of disagreement (NOD) with the November 2008 rating decision, specifying his disagreement with the denial-of-service connection for sleep apnea and five other issues. In October 2013, the Veteran again filed a claim for service connection of TBI. A March 2014 rating decision denied service connection for TBI. The Veteran filed a NOD in December 2014, and an SOC was issued in September 2017. The Veteran perfected his appeal in a November 2017 Form 9, and was granted service connection for TBI in a January 2018 Board decision. The March 2018 rating decision established the effective date of the grant as October 10, 2013, the date that the Veteran's claim for service connection was received. At the time of this decision, the Veteran's September 2008 claim for service connection for sleep apnea was still pending. In a March 2019 decision, the Board granted service connection for sleep apnea, secondary to the Veteran's service connected TBI and hypothyroidism. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). Prior to March 24, 2015, any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155 (2014). Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). The Veteran contends that the appropriate effective date for service connection of residuals of TBI is September 15, 2008, because his claim for service connection for sleep apnea encompassed the "causal disability" of an in-service traumatic brain injury. Both the September 2008 and October 2013 claim dates are more than a year after separation from service, so the day after separation from service is not a potential effective date. In this case, the Veteran reported symptoms of a TBI, including headaches and cognitive problems since his in-service head injury, which occurred in 1960. This is the date that entitlement arose, and is prior to the September 2008 and October 2013 claim dates. Accordingly, the Veteran's entitlement to compensation had arisen prior to either October 10, 2013 (that date of his claim for compensation for TBI) or September 15, 2008 (the date of his claim for compensation for sleep apnea), so the remaining question is which of these dates is the correct date of the claim for service connection of TBI. In support of his contention, the Veteran directs the Board to Delisio v. Shinseki 25 Vet. App. 45 (2011) to support an effective date of September 15, 2008, the date of claim for service connection for sleep apnea. In Delisio, the Court held that that "when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability." Delisio at 55. However, Delisio made clear that entitlement to an earlier effective date for the causal disability is permissive, not mandatory, stating "the effective date for both the secondarily service-connected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits." Delisio at 55 (emphasis added). The Board finds that the claim for sleep apnea does not reasonably encompass a claim for service connection for TBI. The Veteran filed separate claims for service connection for sleep apnea and TBI in September 2008. After the claim for TBI was denied in November 2008, the Veteran chose not to appeal the claim, although he did appeal the claim for sleep apnea. The possibility of TBI's causal connection to sleep apnea was not raised until January 2014, after the Veteran had filed a new claim for service connection for TBI. The Board finds that the November 2008 rating decision denying service connection for TBI was final, and that the Veteran's claim for sleep apnea does not reasonably encompass a claim for service connection for TBI. The Veteran's subsequent, and successful, claim for service connection for TBI was received on October 10, 2013. This date is the later of the date of claim and the date entitlement arose. Therefore, entitlement to an effective date prior to October 10, 2013, is not warranted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that evaluation. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the persuasive weight of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Residuals of TBI The Veteran contends that he is entitled to an initial rating in excess of 70 percent for residuals of a TBI. In April 2021, this matter was remanded from the Court pursuant to a JMPR as inextricably intertwined with the issue of entitlement to an effective date for service connection of TBI prior to October 10, 2013. As detailed above, the Board has found that the Veteran is not entitled to an earlier effective date, and now evaluates the Veteran's claim to an initial rating for the residuals of TBI with headaches in excess of 70 percent. Under the Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the same table, with the exception of any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction should be evaluated under § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, such symptoms should also be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction should be evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Other residuals reported on an examination should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and then combined under § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled total. A 100 percent evaluation should be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation should be assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Id. The 10 cognitive impairment facets are: consciousness, communication, neurobehavioral effects, subjective symptoms, visual spatial orientation, motor activity, orientation, social interaction, judgment, and one facet encompassing memory, attention, concentration, and executive function. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124a, Note 1. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124a, Note 2. Instrumental activities of daily living refer to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. 38 C.F.R. § 4.124a, Note 3. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a, Note 4. Rating in Excess of 70% for residuals under DC 8045 The Veteran attended a VA examination February 2014, and at that examination, the Veteran reported forgetfulness, memory problems and headaches. He was able to participate in the examination, and provide the examiner with the circumstances of his traumatic brain injury, and report his current symptoms. On examination, the VA examiner noted subjective complaints of memory loss without objective evidence on testing, normal judgment, routinely appropriate social interaction, full orientation, mildly impaired visual-spatial orientation, normal consciousness, and intact expressive and receptive communication (both written and spoken). The examiner documented moderately decreased motor activity due to apraxia, and neurobehavioral effects that occasionally interfere with workplace or social interaction, but do not preclude these interactions. The Veteran reported subjective symptoms, including near-daily headaches that occurred around going to bed and when he wakes up. The examiner concluded these headaches were mild and did not interfere with work. The claims file does not document that the Veteran has sought treatment for residuals of his TBI since October 2013. In January 2019, the Veteran submitted a private vocational assessment prepared at the request of his representative. In this report, the vocational assessor accepted the characterizations of the Veteran's TBI symptoms, including mild memory loss and visual-spatial impairment, as well as neurobehavioral effects that occasionally interfered with workplace or social interaction. The Veteran also participated in a July 2020 interview with a second vocational assessor about the effects of service-connected disabilities other than TBI. While the Veteran described being unable to focus on a conversation or half hour TV show, he attributed these problems with concentration and focus to fatigue caused by sleep apnea and hypothyroidism. The Board notes that while the Veteran required the assistance of his wife to participate in a July 2020 telephonic interview with a vocational assessor, the assessor specifically did not attribute this need for assistance to the Veteran's TBI. Instead, the assessor noted that the Veteran needed assistance due to his bilateral hearing loss and difficulty with English. In addition, the Veteran was able to participate in the interview and provide detailed descriptions of his current symptoms, and the assessor noted no difficulties with his ability to focus on the conversation. Considering all the evidence of record, the current 70 percent evaluation is appropriate for the entire period. In reaching this finding, the Board notes that the most persuasive evidence of record does not indicate that the Veteran's residuals of TBI manifest in a facet evaluation of "Total" for any cognitive impairment or other residual. The Board acknowledges that to the extent the Veteran's statements suggest a higher evaluation, they are outweighed by the other evidence of record, including the February 2014 VA examination and the vocational assessments prepared at the request of and submitted by the Veteran's representative. Separate rating for headaches Diagnostic Code 8045 directs that subjective symptoms with a distinct diagnosis that may be evaluated under another diagnostic code, even when the diagnosis is based on subjective symptoms. Migraine headaches and Meniere's disease are included as examples of these distinct diagnoses. Here, the Veteran was diagnosed with headaches at the February 2014 VA examination. He described the headaches as occurring almost daily, around the time he goes to bed and upon waking. The VA examiner characterized the headaches as not interfering with work. The January 2019 vocational assessment prepared at the request of the Veteran's representative concluded that the Veteran's headaches, in addition to his other TBI symptoms would not completely preclude him from completing tasks, but cause him to take longer to perform them. The headaches are a residual of his TBI; this is not a listed condition in the Schedule, and so are rated by analogy to migraine headaches. Migraine headaches are evaluated pursuant to Diagnostic Code 8100. A 10 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran has described near-daily headaches that occur shortly before sleep and upon waking. The claims file does not document that he has sought treatment for these headaches. Although the Veteran has frequent headaches, his headache disability is not marked by the prostrating attacks characteristic of migraines. The Veteran's headaches occur shortly before and after sleep, and the record does not document that these headaches require medication, or that the Veteran has sought treatment for them. The February 2014 VA examination characterized these headaches as not interfering with the Veteran's ability to work. The Veteran's headaches, while frequent, do not rise to the level of incapacitating or prostrating attacks occurring every two months or so required for a 10 percent rating. Rather, they most closely approximate less frequent prostrating attacks. Hemorrhoids These issues were remanded for readjudication by the Court in June 2021 pursuant to a joint motion for remand due to failure to provide an adequate statement of reasons and bases regarding the Veteran's entitlement to TDIU. During the pendency of this appeal, the Board granted a 20 percent evaluation for hemorrhoids, effective June 5, 2018. The rating issues remain before the Board because the increased rating that was granted was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). Under Diagnostic Code 7336, a noncompensable rating is warranted for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 10 percent rating is warranted for internal or external hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue and evidencing frequent recurrences. A 20 percent rating is warranted for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increased in severity, such as to warrant a higher rating, during that one-year period. The Veteran's hemorrhoids are currently rated as 10 percent since September 1, 2008, and 20 percent since June 5, 2018. The Veteran contends that his hemorrhoids should be rated as 20 percent disabling no later than October 2013. At the October 2008 VA examination, the Veteran reported that his hemorrhoids caused constant pain and burning, as well as frequent but not daily bleeding. On physical examination, the VA examiner observed a one-centimeter reducible internal hemorrhoid. There was no evidence of thrombosis, bleeding, or fissures, although excessive redundant tissue was observed. The Veteran reported a history of occasional fecal perianal discharge and denied a history of fecal incontinence. Physical examination did not show a sphincter impairment. In July 2010, the Veteran attended another VA examination, and reported persistent hemorrhoid pain and frequent bleeding. He denied a history of perianal discharge or fecal incontinence. Physical examination documented small, reducible internal hemorrhoids with no evidence of bleeding, thrombosis, prolapse or fissures. No sphincter impairment was documented. At the June 2018 VA examination, the Veteran reported rectal bleeding every two to three weeks, and constant slight leakage that required the wearing of a pad. The VA examiner characterized the Veteran's hemorrhoids as mild to moderate with persistent bleeding. He attributed the Veteran's report of constant slight leakage requiring the wearing of a pad to impairment of rectal sphincter control. Physical examination showed small to moderate external hemorrhoids and excessive redundant tissue. No bleeding, prolapse, thrombosis or impaired control of the sphincter was documented on physical examination. VA treatment records from 2008 to 2011 showed the Veteran's hemorrhoid symptoms were well controlled with Docusate and a daily suppository. The Veteran repeatedly denied symptoms such as constipation or hematochezia. On at least one occasion, the Veteran's treatment provider described the Veteran's hemorrhoids as asymptomatic. In 2012 and 2013, the Veteran sought treatment for increased pain and bleeding for his hemorrhoids, and underwent banding procedures in 2012 and again in 2013 when his hemorrhoids recurred. In a July 2020 vocational assessment submitted by the Veteran's representative, the Veteran reported that he experiences constant pain, which is exacerbated by sitting. He described wearing disposable undergarments due to daily bleeding and brown and yellow discharge that requires him to change his undergarments at least twice daily. He reported that the pain and discomfort from his hemorrhoids makes it difficult for him to sit, stand or walk for prolonged periods of time. In its June 2018 rating decision, the AOJ awarded the Veteran a 20 percent evaluation with pruritis ani based on persistent bleeding. The Board notes that the requirements for a 20 percent rating, the maximum schedular rating, requires both persistent bleeding and secondary anemia or fissures. Although the Board's review of the file does not reveal evidence or complaints of secondary anemia or fissures at any point during the appeal period, the AOJ determined that the Veteran's symptoms in June 2018 most closely approximated the rating criteria for a 20 percent rating. The Veteran has reported the same symptoms since October 2008, and physical examinations in 2008, 2010 and 2018 revealed nearly identical findings. As the AOJ has already determined that these reports of symptoms are sufficient to support the maximum schedular rating, the Board must resolve doubt in favor of the Veteran, and finds a 20 percent rating for hemorrhoids with pruritis ani since September 1, 2008, is warranted throughout the period on appeal. Impaired Sphincter Control Diagnostic Code 7332 pertaining to impairment of sphincter control of the rectum and anus, provides for a non-compensable evaluation for slight loss of sphincter control without leakage. A 10 percent evaluation is assigned for constant slight or occasional moderate leakage. A 30 percent evaluation is assigned for occasional involuntary bowel movements necessitating the wearing of a pad. A 60 percent evaluation is assigned for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent evaluation is warranted for a complete loss of sphincter control. See 38 C.F.R. § 4.114, Diagnostic Code 7332. As detailed above, prior to June 5, 2018, the Veteran reported no more than occasional fecal perianal discharge. Physical examinations prior to this date did not reveal objective evidence of a sphincter impairment, and the Veteran did not allege that the perianal discharge was of such a volume or frequency that he needed to use a pad. Moreover, treatment records prior to June 5, 2018, do not show that the Veteran sought treatment for or complained of leakage necessitating the wearing of a pad. The Board finds that prior to June 5, 2018, the Veteran's symptoms of impaired sphincter control most closely approximate the rating criteria for a 10 percent rating. A 30 percent rating is not warranted prior to June 5, 2018, as the Veteran consistently denied fecal incontinence and the claims file does not contain evidence that his condition necessitated the wearing of a pad. Since June 5, 2018, however, the Veteran's symptoms have more closely approximated the criteria for a 30 percent rating, as he reported needing to wear a pad due to constant slight leakage. The Board acknowledges the Veteran's July 2020 reports of brown and yellow discharge for which he wears disposable undergarments which he changes twice a day. However, he does not report frequent involuntary bowel movements, which is a requirement for the 60 percent rating. A 100 percent rating requires complete loss of sphincter control, and the evidence, including the Veteran's own descriptions of his symptoms, do not approximate complete loss of sphincter control. Additionally, the Board notes that the Veteran does not contend that his sphincter impairment warrants more than a 30 percent rating. Entitlement to TDIU prior to October 10, 2013 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has been in receipt of TDIU since October 10, 2013. Therefore, this decision will only consider the period of time prior to October 10, 2013. The Veteran first met the schedular requirements for TDIU on September 15, 2008, when his sleep apnea was rated as 50 percent disabling. From September 15, 2008 to October 10, 2013, the Veteran was service connected for obstructive sleep apnea, rated as 50 percent disabling; hypothyroidism, rated as 30 percent disabling; hemorrhoids, rated as 20 percent disabling; bilateral tinnitus rated as 10 percent disabling; and impaired sphincter control, rated as 10 percent disabling. Additionally, during this period, the Veteran had noncompensable ratings for bilateral hearing loss and hyperthyroidism. 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Concerning his educational and vocational history, the Veteran completed both a bachelor's and master's degrees. He worked as a mail handler from 1986 until 2003 at several post offices in Florida and Alabama, and prior to 1986 worked as a high school teacher teaching social science, geography, and Spanish. The Veteran reported that he left his post office job in 2003 due to the combination of fatigue and pain from a non-service-connected knee disability. The Veteran was deemed disabled by the Social Security Administration in 2006. In his application for benefits, the Veteran stated that he was unable to work because of his knee condition, pulmonary fibrosis, osteoporosis, and rhinitis. He reported that he left his job as a mail handler in 2003 due to his knees, respiratory conditions, and bone pain from osteoarthritis. He did not mention fatigue. The Veteran was ultimately found disabled for purposes of Social Security benefits due to these conditions. However, because none of these conditions are service connected, the limitations they cause cannot be considered. The Board notes that the Veteran was not diagnosed with obstructive sleep apnea until approximately March 2008. At a May 2012 VA examination, the Veteran reported symptoms including fatigability, constipation, and sleepiness. He denied mental sluggishness or mental disturbances such as slowing of thoughts, dementia, or depression. Laboratory tests showed the Veteran's levels of T3 and T4 were below the range of normal. The VA examiner noted that the Veteran's functional capacity was impaired by multiple medical problems and that he was partially dependent on his family for showers and other things. The examiner did not specify the other medical problems or the role of the Veteran's' thyroid disability. VA treatment records between 2008 and 2011 document that the Veteran repeatedly denied gastrointestinal symptoms, endocrine symptoms, and fatigue although in January 2009, he sought treatment for constipation. Subsequently, the Veteran's treatment providers characterized his hemorrhoids as asymptomatic. On physical examination, the Veteran was always described as alert and oriented, in no apparent distress and well-groomed. These same providers routinely described the Veteran's hypothyroidism as well-controlled and his obstructive sleep apnea as responsive to the CPAP machine and non-symptomatic. At a March 2012 VA examination, the Veteran denied that his tinnitus impacted his ability to work or ordinary conditions of daily life. Private treatment records from 2012 and 2013 show that the Veteran sought treatment for recurrences of his hemorrhoids, and underwent a banding procedure two times. The Veteran complained of small amounts of recurrent bleeding. Physical examinations showed that the Veteran was alert and oriented, with normal speech and gait, and able to understand instructions. In a July 2020 interview with a private vocational assessor, the Veteran described his current symptoms, including fatigue that impacts his concentration so much that he is unable to follow the plot of a 30-minute television program and has difficulty focusing while engaged in conversation. He stated that the severe pain from his hemorrhoids prevents him from sitting, standing, or walking for prolonged periods of time. He also reported that his hearing loss and tinnitus currently affected his ability to communicate with his wife and family members, and disrupt his sleep. The Board notes that the Veteran was relating his current symptomatology in 2020, and these statements are of little probative value in assessing his functioning over a decade prior. Additionally, the Board notes that while the Veteran had the assistance of his wife to participate in a July 2020 telephonic interview, the assessor specifically did not attribute this to any of the Veteran's disabilities that were compensable between 2008 and 2013. Instead, the assessor noted that the Veteran needed assistance due to his bilateral hearing loss (for which he was granted a 100 percent rating in January 2019, and was rated as noncompensable from 2008 to 2013) and difficulty with English. In addition, the Veteran was able to participate in the interview and provide detailed descriptions of his current symptoms, and the assessor noted no difficulties with his ability to focus on the conversation. The most probative and persuasive evidence of record does not indicate an inability to secure and follow substantially gainful employment due to his service-connected disabilities prior to October 10, 2013. The Board acknowledges that the Veteran has numerous medical conditions that affect his ability to work. However, for purposes of this decision, only the effects of his service-connected sleep apnea, hemorrhoids, impaired sphincter control, hypothyroidism, bilateral tinnitus and non-compensable hyperthyroidism and hearing loss, can be considered. In light of the Veteran's educational history, especially his master's degree; his varied degree of vocational accomplishment; the private and VA treatment records prior to October 10, 2013, and the Veteran's contemporaneous statements to his medical providers regarding the nature, severity and impact of symptoms, the most persuasive and probative evidence is not consistent with an inability to work in a substantially gainful occupation based on the functional his service-connected disabilities. Accordingly, entitlement to TDIU prior to October 10, 2013, is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.