Citation Nr: 23045481 Decision Date: 08/16/23 Archive Date: 08/16/23 DOCKET NO. 18-55 074 DATE: August 16, 2023 ORDER Entitlement to a 20 percent rating for scar of the left foot is granted. Beginning January 1, 2018, entitlement to a total disability rating based on unemployability due to service connection disabilities is granted. Entitlement to special monthly compensation based on the housebound rate is granted. As new and material evidence has been received, the petition to reopen a claim for entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to specially adapted housing is denied. Entitlement to special home adaptation grant is denied. Entitlement to a higher rating for pes planus with plantar fibrosis is remanded. FINDINGS OF FACT 1. The Veteran's two scars on the left foot are both unstable and painful. 2. The Veteran has one disability that is rated as 40 percent disabling and a combined evaluation of 70 percent. 3. Beginning January 1, 2018, the Veteran's service-connected psychiatric disability renders him unable to obtain and maintain substantially gainful employment. 4. Beginning June 1, 2018, the Veteran had a single disability rated 100 percent disabling (acquired psychiatric disability) plus additional disabilities independently rated as 60 percent or more disabling. 5. The evidence added to the record since the April 2015 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for left foot scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. Beginning January 1, 2018, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. 3. Beginning June 1, 2018, the criteria for entitlement to SMC based on statutory housebound status for the entire appeal period, are met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 4. New and material evidence has been received since the April 2015 rating decision denying entitlement to service connection for hypertension; the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1990 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) from July 2017, April, 208, July 2018, September 2018, August 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues of earlier effective date for an increased rating claim for pes planus and an earlier effective date for service connection for left foot scar were adjudicated by the Agency of Original Jurisdiction (AOJ) in October 2019. The Veteran filed a supplemental claim for these issues in November 2019. These issues are not before the Board and are still pending for adjudication at the AOJ. 1. Entitlement to a 20 percent rating for scar of the left foot is granted. The Veteran contends that a higher rating is warranted for his left foot scars. The Veteran's left foot scars are rated under Diagnostic Code 7804 for unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 to Diagnostic Code 7804 instructs that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Board finds that the evidence of record shows that a 10 percent rating should be added to the 10 percent rating already assigned because the Veteran has two scars of his left foot that are unstable and painful. See Note 2 to Diagnostic Code 7804. The AOJ has afforded the Veteran multiple scar examinations throughout the appeal period. A March 2019 scar examination notes two scars on the left foot. The scars were both tender to palpation and unstable. They both were peeling but without wounding. The April 2019 foot examination confirms that the scar associated with the left foot disability measures 10 centimeters by 0.5 centimeters. The October 2019 scar examination notes the scars were tender to palpation but not unstable or having underlying soft tissue damage. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran has two unstable and painful scars on his left foot. Note 2 instructs that a 10 percent rating be added for every unstable or painful scar. Therefore, a 20 percent rating is warranted for the Veteran's left foot scars. A higher rating under DC 7804 is not warranted as there are only two left foot scars. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left foot scars are not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Further, the scars have not caused limitation of motion where a rating could be assigned under another diagnostic code. The Veteran is already in receipt of evaluations for pes planus with plantar fibrosis of his feet. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include his reports of painful and instability to his scars, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's scars are manifested by three or four scars that are unstable or painful. In conclusion, the Board finds that the evidence show that another 10 percent rating should be added to the currently assigned 10 percent rating. The Veteran should, therefore, be assigned a 20 percent rating for left foot scars. But the evidence does not show that a higher rating should be assigned. 2. Entitlement to a total disability rating based on unemployability due to service connection disabilities is granted. The Veteran seeks a TDIU. He contends that he unable to work due to his service-connected posttraumatic stress disorder (PTSD). The Veteran's is service connected for several psychiatric disabilities. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD, unspecified bipolar and related disorder, rated as 70 percent from June 20, 2011; pes planus, rated as 20 percent from June 20, 2011 and 50 percent from June 1, 2018; migraine headaches, rated as 30 percent from October 30, 2018; asthma, rated as 30 percent from November 5, 2018; residual scar of left foot rated as 20 percent from June 1, 2018 (per this decision); tinnitus rated as 10 percent from October 21, 2018, post inflammatory hyperpigmentation due to burn of right arm, rated as 10 percent from February 5, 2019; and several disabilities rated as noncompensable including erectile dysfunction, perforation of left tympanic membrane, status post right wrist laceration of right arm, bilateral hearing loss, maxillary frontal sinusitis, and allergic rhinitis. Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran has taken about three years of college courses. After service, he worked as a correction officer but had an alcohol problem at that time. He then worked for Sheriff Department as a corrections Officer. He was injured in that job and had to leave that job. He then worked as a car salesman for three to four years but coped with this job with cocaine and alcohol. He then worked as a mortgage broker. He most recently worked from May 2005 to January 2018 in management at AT&T and last worked in January of 2018. The claims file shows that the Veteran had stressors at work in 2017. He found fraud in his workplace and reported it. This brought on harassment that exacerbated his PTSD that had begun in the military. See August 2017 treatment record. The Veteran has not been able to work since January 2018. He reported that he cannot work due to his psychiatric disability. See September 2019 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of PTSD and bipolar disorder. The January 2020 PTSD examiner explained that the Veteran had depressed mood, anxiety, panic attacks that occur weekly, suspiciousness, near-continuous pain or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flatted affect, circumstantial circumlocutory stereotyped speech, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or at work like setting, obsessional rituals which interfere with routine activities and neglect of personal hygiene. Given the forgoing, the Veteran's service-connected psychiatric disability precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted beginning January 1, 2018. 3. Entitlement to special monthly compensation (SMC) based on the housebound rate is granted. Beginning June 1, 2018, entitlement to special monthly compensation on the housebound rate is granted. VA shall pay special monthly compensation (SMC) at the housebound rate when a Veteran has a single service-connected disability rated at 100 percent and additional service-connected disabilities that total at least 60 percent. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Board finds there is an inferred claim for SMC based on a housebound rate. The Veteran has been granted a TDIU per this decision. TDIU is based solely on his service-connected psychiatric disability. The Veteran is in receipt of other disabilities that are rated as 60 percent or more. The Veteran has a 50 percent rating for his pes planus with plantar fibrosis and a 20 percent rating for his residual scars status post left foot surgery associated with pes planus with plantar fibrosis. These disabilities combined to be 60 percent. He is also rated for other disabilities that are not his psychiatric disability as well. Therefore, the requirements under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i) have been met. Therefore, requirements for special monthly compensation at the housebound rate are met beginning June 1, 2018, the date when the Veteran had an additional 60 percent rating for disabilities other than his psychiatric disability. New and Material Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). 1. As new and material evidence has been received, the petition to reopen a claim for entitlement to service connection for hypertension is granted. Service connection for hypertension was denied in an April 2015 rating decision. The AOJ determined that there was no evidence showing a hypertension diagnosis in service. Since the April 2015 rating decision, evidence added to the record includes a medical treatment record showing a diagnosis for hypertension. See August 2012 treatment record. As there is evidence of a current hypertension disability, the claim may be reopened. The reopened claim is addressed in the remand that follows. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. Although the Veteran was afforded with a back examination and opinion in August 2018, the opinion is inadequate. The examiner failed to address the Veteran's report of low back pain in a July 1996 service treatment record. The examiner instead only discussed the incident in service when he fell and injured his wrist. The Veteran's spouse also submitted a statement attesting that he had chronic back pain in May 2004 when she first met him. A new opinion is therefore needed. 2. Entitlement to service connection for sleep apnea is remanded. Although the Veteran was afforded a sleep apnea examination and opinion in July 2020, the opinion is inadequate. The examiner concluded that the Veteran's service-connected PTSD did not cause the Veteran's sleep apnea but did not opine as to whether the Veteran's service-connected PTSD aggravates his sleep apnea. Further, an opinion is needed that addresses the July 2020 statement by the Veteran's former spouse who explained the Veteran's sleep problems during service. She noted that his sleep apnea was very worrisome as he would stop breathing multiple times every night and she would have to shake him to wake him up. Therefore, a new opinion is needed. 3. Entitlement to service connection for a sleep disorder is remanded. The Veteran's sleep disorder is intertwined with the Veteran's sleep apnea disability and cannot be adjudicated until after further development is completed for his sleep apnea disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 4. Entitlement to service connection for fibromyalgia is remanded. 5. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Although the Veteran has received multiple examinations and opinions for his fibromyalgia and chronic fatigue syndrome, the examiner did not address whether his chronic fatigue and fibromyalgia symptoms together were a part of a cluster of signs or symptoms that would be considered a medically unexplained chronic multisymptom illness (MUCMI). The examiner concluded that the Veteran does not have fibromyalgia or chronic fatigue syndrome. See 38 C.F.R. § 3.317 (b); see also 38 C.F.R. § 3.317 (a)(2)(i)(B) (noting that a qualifying chronic disability may be a MUCMI that is defined by a cluster of signs or symptoms such as but not necessarily limited to chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders). Thus, the examiner did not opine to the ultimate question, e.g., whether the Veteran has an undiagnosed illness, or a MUCMI "that is defined by a cluster of signs or symptoms," other than the named conditions. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Therefore, a new examination and opinion is needed that considers these aforementioned symptoms, and renders an adequate medical opinion as noted above. 6. Entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for hypertension is now reopened. A new examination and opinion is needed to determine if his hypertension began during service. The Veteran reported that he began taking hypertension medication during his period of reserve duty. Medical records from his reserve duty should be obtained and associated with the claims file. Further, the Veteran and his attorney argue that the Veteran's PTSD causes or aggravates his hypertension. An opinion is needed that addresses this argument. 7. Entitlement to specially adapted housing is denied. 8. Entitlement to special home adaptation grant is denied. The Veteran's housing claims remain intertwined with the service connection claims that are the subject of the present appeal and remand. Thus, as these claims may be impacted by the outcome of the service connection claims, they must be deferred pending the completion of the development of the back claim. 9. Entitlement to a higher rating for pes planus with plantar fibrosis is remanded. The Veteran filed a Notice of Disagreement in June 2013 with the issue of a higher rating for pes planus. No statement of the case has been issued for an increased rating for pes planus with plantar fibrosis, and the Veteran did not withdraw his appeal. See 38 C.F.R. § 20.904 (c), codifying Manlincon v. West, 12 Vet. App. 238 (1999). A remand is needed so that the AOJ can adjudicate this claim prior to the Board's review. The matters are REMANDED for the following action: 1. Obtain medical records from his reserve duty and associated with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's back disability is at least as likely as not related to service. The clinician is directed to the July 1996 service treatment record noting the Veteran's report of low back pain and the statement by the Veteran's spouse attesting that he had chronic back pain in May 2004 when she first met him. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's sleep apnea disability. The clinician should provide a response to the following: (a) Is the Veteran's sleep apnea at least as likely as not related to service, including to the moments that he stopped breathing during service? (b) Is the Veteran's sleep apnea at least as likely as not proximately due to service-connected PTSD or any other service-connected disability? (c) Is the Veteran's sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD or any other service-connected disability? The clinician is directed to July 2020 statement by the Veteran's former spouse who explained the Veteran's sleep problems during service. She noted that his sleep apnea was very worrisome as he would stop breathing multiple times every night, and she would have to shake him to wake him up. 4. Schedule the Veteran for a VA examination for a qualifying chronic disability due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness (MUCMI), to include fibromyalgia and chronic fatigue syndrome. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is fibromyalgia and chronic fatigue syndrome at least as likely as not related to service? (b) Does the Veteran have an undiagnosed illness, or MUCMI that is defined by a cluster of signs or symptoms other than the named conditions? The examiner must discuss all of the Veteran's symptoms of pain. The examiner is reminded that it is unnecessary that the Veteran's disability be related to fibromyalgia, chronic fatigue syndrome, or headaches in order to obtain service connection. The disability can be a qualifying chronic disability (MUCMI) that is defined by a cluster of signs of symptoms of, but are not limited to, chronic fatigue syndrome, or fibromyalgia, or headaches. Provide a rationale to support the opinion(s). 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's hypertension. (a) Is the Veteran's hypertension at least as likely as not related to the Veteran's military service? (b) Is the Veteran's hypertension at least as likely as not proximately due to service-connected PTSD or any other service-connected disability? (c) Is the Veteran's hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD or any other service-connected disability? 6. Issue a statement of the case for the issue of a higher evaluation for higher rating for pes planus with plantar fibrosis in response to the Veteran's June 2013 notice of disagreement. 7. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.