Citation Nr: 1301562 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-32 189 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Heather E. Vanhoose, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and Observer ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and February 2010 rating decisions, which denied the aforementioned claims. The Veteran testified at a Travel Board hearing in April 2012 before the undersigned Veterans Law Judge (VLJ) at the Huntington, West Virginia, RO. A transcript of this hearing has been associated with the claims file. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The record reflects that additional VA medical records were associated with the Veteran's Virtual VA paperless claims file after the most recent statement of the case (SOC) and supplemental statement of the case (SSOC) were issued with respect to the claims on appeal without a waiver of consideration of such evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. However, the Board notes that the majority of this evidence is duplicative of evidence previously associated with the claims file. Moreover, as these issues have either been withdrawn by the Veteran, or are being granted in full or remanded, as discussed below, the Board finds no prejudice to the Veteran in proceeding to adjudicate these claims as done below. The Board notes that the Veteran submitted a claim in August 2011 for service connection for a heart condition. A rating decision was not provided with respect to this issue. However, as the Veteran's representative submitted a statement on February 6, 2012, indicating that the Veteran wished to withdraw this claim, the Board finds that this issue has been withdrawn and need not be referred to the RO for consideration at this time. The Board notes that the Veteran submitted a claim for entitlement to an increased evaluation for service-connected diabetes mellitus, type II. This issue has not been addressed by the RO. As such, the issue of entitlement to an increased evaluation for service-connected diabetes mellitus, type II has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, type II is addressed in the REMAND portion of the decision below and is REMANDED to the VA RO. FINDINGS OF FACT 1. The evidence of record shows that the Veteran meets the percentage requirements for TDIU, as his anxiety disorder, not otherwise specified, is assigned a 70 percent rating, and his diabetes mellitus, type II is assigned a 20 percent rating. 2. The Veteran's service-connected disabilities are of such severity so as to preclude substantially gainful employment. 3. On December 30, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeal of the issue of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II is requested. 4. On December 30, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeal of the issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II is requested. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Sup. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2012). 2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II by the Veteran's authorized representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II by the Veteran's authorized representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for entitlement to TDIU, the benefit sought on appeal has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the Veteran's claims for service connection for hypertension and erectile dysfunction, the Veteran has withdrawn his appeal of these issues, as will be discussed below. As such, discussion regarding statutory and regulatory notice and duty to assist provisions is not necessary with regard to these claims. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Under 38 C.F.R. § 4.16(a), for the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). 1. Entitlement to TDIU. In this case, the Board notes that the Veteran's service-connected disabilities are his anxiety disorder, not otherwise specified, which is rated at 70 percent, and his diabetes mellitus, type II, which is rated at 20 percent. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). However, for the Veteran to prevail on a claim for entitlement to TDIU, the evidence must show that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. In this regard, the Board has considered all relevant evidence of record. Specifically, the Board notes that Social Security Administration (SSA) records reflect that the Veteran was determined to be disabled due to a back disorder, hypertension, and posttraumatic stress disorder (PTSD). In September 2006, the Veteran underwent a VA examination, in which it was noted that he retired in October 1996 because his job was terminated due to closure of the mine. The examiner stated that there is not total occupation and social impairment due to the PTSD signs and symptoms. In September 2009, the Veteran underwent a VA examination. The examiner noted that the Veteran retired in 2000 due to a lower back condition and PTSD. In an October 2009 VA psychiatric examination, the examiner determined, with regard to occupational impairment, that the Veteran's disability was serious but did not result in major/total impairment. In the absence of contemporary occupation information (he is disability retired), occupation functioning is assessed based on frequency and intensity of PTSD symptoms and their predicted impact on occupational reliability, efficiency, and productivity. Serious impairment is predicted based on the effects of PTSD symptoms, in that there would likely be definite impairment, and with retained potential for only a few aspects of occupational efficiency, reliability, and productivity remaining intact. The examiner went on to note that the Veteran was seriously but not totally impaired by symptoms of PTSD. In November 2010, the Veteran underwent a VA examination, in which it was noted that he retired in 2000 due to physical and psychiatric problems, to specifically include a lower back condition and PTSD. It was further noted that the Veteran's diabetes mellitus had no impact on any type of employment. In a December 2010 VA examination, the Veteran reported that he retired as a coal miner in 1996. He stated that his mine shut down at that time or he would probably "still be working yet". The Veteran reported having attended college after that in an effort to become a respiratory therapist. However, the program did not become available, so the Veteran attempted computer information systems and ended up dropping out when this became too difficult for him. The examiner determined that the Veteran remains employable from a mental health perspective and himself commented that he would still be working if the mine he worked at had remained open. The examiner noted that the Veteran would be expected to have no more than mild to moderate difficulty in employment. The examiner stated that there was not total occupation and social impairment due to the PTSD signs and symptoms. In a July 2011 VA treatment record, the Veteran reported that he has been active and jogging up to 10 miles per day. Most recently, in support of his claim, the Veteran submitted a September 2011 vocational assessment by a rehabilitation specialist from Vass Vocational Services, Inc. This rehabilitation specialist reviewed and discussed the pertinent evidence of record. He or she noted that the Veteran worked with U.S. Steel Corporation as a shuttle car operator until the mine closed in 1996. The Veteran attributed his inability to return to gainful employment solely due to his PTSD. He stated that this condition manifested by making him chronically fatigued due to lack of sleep, with avoidance of people, and with emotional swings. The Veteran reported several confrontations with his boss while working in the mines, but fortunately his boss was his cousin and he was not fired. It was noted that the Veteran was able to work with this condition as long as he had a regular work schedule and stayed busy. The rehabilitation specialist concluded that, after reviewing the file and speaking with the Veteran, it was his or her opinion that the Veteran could not engage in any type of substantial, gainful employment. In reaching this conclusion, consideration was given to his exertional, as well as his non-exertional limitations. It was noted that the Veteran reported no significant physical limitations which would prevent him from working. However, upon consideration of the Veteran's non-exertional limitations, the rehabilitation specialist opined that the Veteran was not able to engage in substantial, gainful employment due to his PTSD. Whether taken in combination, or individually, the reports of impairments are consistent from the Veteran, SSA, J.A. (a licensed psychologist), and VA. The Veteran's global assessment functioning (GAF) scores range from 44 to 51. None of these scores are compatible with gainful employment. The rehabilitation specialist concluded by stating that the Veteran is a 65 year-old male who was able to work several years after his military experience. After he was laid off, his PTSD symptoms intensified to the extent that he was unable to complete his training program or return to gainful employment. VA's description of the complication resulting from the 70 percent PTSD would clearly remove the Veteran from the workforce. SSA's limitations would do the same, as would his self-reported limitations, and those noted by J.A. In combination, limitations set forth in this record, due to PTSD, clearly eliminate his ability to return to gainful employment. Upon review of all relevant evidence of record, the Board notes that the claims file contains conflicting evidence regarding whether the Veteran is precluded from obtaining or maintaining employment due to his service-connected disabilities. However, as the Veteran's service-connected disabilities meet the percentage rating standards for TDIU, and the claims file now contains evidence from a rehabilitation specialist indicating that the Veteran's service-connected psychiatric disability currently eliminates his ability to return to gainful employment, the Board will resolve all reasonable doubt in favor of the Veteran and grant his claim for entitlement to TDIU. In granting this claim, the Board notes that the September 2011 rehabilitation specialist referred to the Veteran's psychiatric disability as PTSD, while the Veteran is currently service connected for an anxiety disorder. However, as it is clear that this specialist is indicating that the Veteran's psychiatric symptoms prevent him from working, and the diagnosis of the Veteran's service-connected psychiatric disability has been altered throughout the file, the Board finds no issue with regard to granting entitlement to TDIU based on the September 2011 medical record, despite the references to PTSD as opposed to an anxiety disorder. 2. Entitlement to service connection for hypertension and erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn his appeal of the issues of entitlement to service connection for hypertension and erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. ORDER Entitlement to TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. The appeal of the issue of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II is dismissed. The appeal of the issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II is dismissed. REMAND The Veteran is seeking entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, type II. Upon review of the claims file, the Board finds that further development is required to adjudicate this claim. As an initial matter, the Board notes that the Veteran's representative submitted a statement in August 2011 indicating that a grant of chapter 35 individual unemployability benefits would satisfy all appeals. However, as the Veteran gave no mention at the April 2012 Board hearing of his desire to withdraw any appeals based on a grant of entitlement to TDIU, the Board will proceed with the adjudication of this claim. Specifically, the Board notes that the Veteran asserted at the April 2012 hearing that his physician recently conducted a nerve conduction study, which ruled out any damage to his legs as a result of a back disability. The Veteran asserted that he was informed that he had peripheral neuropathy of the bilateral lower extremities as a result of his diabetes mellitus, type II. The Veteran's Virtual VA paperless claims file contains a January 5, 2012, VA treatment record, in which the Veteran reported that he spoke to his cardiologist about the numbness in his legs and feet. The Veteran reported that his cardiologist informed him that he believed it could be diabetic neuropathy but recommended he be set up with testing to determine a diagnosis. This record noted that EMG testing would be requested and forwarded to the Veteran's primary care provider for review. The Veteran's claims file and Virtual VA paperless claims file only contain VA treatment records throughout January 24, 2012. As the Veteran indicated at the April 2012 hearing that his physician recently conducted a nerve conduction study, the January 5, 2012, VA treatment record indicated that such testing was being requested, and the claims file contains no record of such testing, the Board finds that this issue must be remanded in order to obtain any and all relevant VA treatment records that have not yet been associated with the claims file, to specifically include any records from January 5, 2012, to the present documenting nerve test results. Additionally, the Board notes that the Veteran was given proper notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. However, upon remand, the Veteran should be given proper notice of the requirements for establishing direct service connection as well. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a direct service connection claim. 2. Obtain any and all VA treatment records that have not yet been associated with the claims file, to specifically include any treatment records from January 5, 2012, to the present documenting nerve test results. 3. Upon receipt of any new evidence, conduct any additional development deemed necessary, to include providing any VA examinations. 4. Then, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs