Citation Nr: 1316331 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 06-13 690 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a claimed loss of vision (including cataracts). 2. Entitlement to service connection for claimed eczema. 3. Entitlement to service connection for claimed alopecia. 4. Entitlement to service connection for claimed left leg radiculopathy, to include as secondary to service-connected back disability. 5. Entitlement to service connection for claimed right elbow tendonitis. 6. Entitlement to an initial evaluation greater than 10 percent for the service-connected hypertension. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1982, February 2003 to December 2003, and from May 2008 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2005, January 2007, and August 2008 rating decisions by the RO. In July 2011, the Board remanded the following issues for further development: service connection for a claimed innocently acquired psychiatric disorder, to include a depressive disorder and posttraumatic stress disorder (PTSD); service connection for a claimed loss of vision; service connection for claimed eczema; service connection for claimed alopecia; service connection for claimed left leg radiculopathy; service connection for claimed right elbow tendonitis; service connection for claimed bilateral Achilles tendonitis; entitlement to an initial evaluation greater than 10 percent for the service-connected hypertension; and entitlement to a TDIU rating. In a separate decision dated in July 2011, the Board denied the claim for a waiver of a properly created overpayment in the amount of $921.60. This issue is no longer for consideration. In January 2013, the RO granted service connection for major depressive disorder (30 percent beginning on September 20, 2004 and 100 percent beginning on September 27, 2011); for right Achilles tendonitis (noncompensable beginning on September 20, 2004 and 10 percent beginning on September 28, 2011) and for left Achilles tendonitis (noncompensable beginning on September 20, 2004). The issue of service connection for bilateral Achilles tendonitis was resolved and is no longer for consideration. With regard to the acquired psychiatric disorder issue, the RO indicated that the grant of service connection for major depressive disorder represented a total grant of the benefit sought on this issue and that it was considered resolved in full. The Board acknowledges that, while the Veteran was granted service connection for major depressive disorder, he was not granted service connection for PTSD. The Board is aware that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a January 2013 statement, however, the Veteran indicated that he was satisfied with the grant of service connection for major depressive disorder. Accordingly, the Board finds that the acquired psychiatric disorder claim has been resolved and further adjudication of the PTSD issue is not required. The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. In a January 2013 statement, the Veteran withdrew his appeal as to the denials of service connection for loss of vision, eczema, alopecia, left leg radiculopathy, right elbow tendonitis; and an initial evaluation greater than 10 percent for the service-connected hypertension. 2. The Veteran met the schedular criteria for a TDIU rating beginning on March 24, 2008; he reported having employment from November 1984 to December 2, 2009. 3. The service-connected disabilities by themselves are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal concerning claims of service connection for a loss of vision, eczema, alopecia; left leg radiculopathy, right elbow tendonitis and an initial evaluation greater than 10 percent for the service-connected hypertension are met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of issues Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn by an appellant or his representative in writing, or on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.204(a), (b). The January 2013 Supplemental Statement of the Case (SSOC) addressed the following issues: (1) service connection for a claimed loss of vision (including cataracts); (2) service connection for claimed eczema; (3) service connection for claimed alopecia; (4) service connection for claimed left leg radiculopathy; (5) service connection for right elbow tendonitis; (6) initial evaluation greater than 10 percent for hypertension; and (7) entitlement to TDIU. In a January 2013 statement, the Veteran indicated that he was withdrawing issues from #1 to #6 currently under appeal as outlined in the SSOC. Therefore, there remain no allegations of errors of fact or law for appellate consideration as concerns the identified issues. Accordingly, the Board no longer has jurisdiction to review these issues and they are dismissed. TDIU Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision in this case, a detailed discussion regarding how VA satisfied its duties to notify and to assist pursuant to the VCAA is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In July 2011, the Board noted the Veteran's assertion that a TDIU rating was warranted and remanded the issue for further development. In a September 2011 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he worked as a security guard from November 1984 to December 2, 2009 and left his last job because of disability. He noted that he was in receipt of Social Security disability benefits due to his service-connected conditions. He reported having four years of high school, but no additional education or training. In the January 2013 SSOC, the Appeals Management Center (AMC) noted that the Veteran was now in receipt of a 100 percent schedular evaluation and therefore, a finding of a TDIU rating was precluded. VA General Counsel opinion 6-99 essentially held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU rating and required dismissal of the TDIU claim. See Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) (noting that a claim for TDIU presupposes that the rating for a condition is less than 100 percent). However, as the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), took a position contrary to the one reached in VAOPGCPREC 6-99, the General Counsel withdrew VAOPGCPREC 6-99, effective on November 4, 2009. 75 Fed. Reg. 11229, 11230 (Mar. 10, 2010). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of a TDIU rating predicated on a single disability may form the basis for an award of special monthly compensation. Bradley, 22 Vet. App. at 293-94. The Board acknowledges that, effective on September 27, 2011, the Veteran is in receipt of a 100 percent schedular evaluation and special monthly compensation at the housebound rate. The issue of TDIU rating prior to that date, however, is still for consideration. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a TDIU rating is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making this determination, the Board notes that the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). On review, the criteria for an award of TDIU rating were met effective on March 24, 2008. Effective from that date, the Veteran was in receipt of a combined 70 percent evaluation, to include a 40 percent evaluation for lumbosacral strain myositis and a 30 percent evaluation for major depressive disorder. Additional service-connected disabilities included those of high blood pressure, tinnitus, right leg radiculopathy, right ankle sprain, gastroesophageal reflux disease, right Achilles tendonitis, left Achilles tendonitis, and hearing loss. The combined evaluation was 80 percent beginning on June 15, 2008 and 100 percent beginning on September 27, 2011. A September 2008 private medical statement indicates that the Veteran's mental and physical condition had deteriorated and that his physician did not think that he could work much longer. The physician further noted that there was a great possibility that Social Security would be approved. Information from the Social Security Administration (SSA) indicates that disability benefits were granted beginning December 2, 2009 based on a primary diagnosis of major depressive disorder and a secondary diagnosis of back disorders. A May 2010 Mental Residual Functional Capacity Assessment completed for SSA purposes indicates that the overall evidence supported the diagnosis of a severe major depressive disorder and that, according to the overall weight of the evidence, the Veteran did not retain the ability to adequately complete a normal workweek and workday. The November 2011 VA psychiatric examination indicates that the Veteran was not currently employed and retired due to service-connected physical and mental disorders. Although the schedular criteria were met beginning on March 24, 2008, the evidence of record indicates that the Veteran was employed from approximately November 1984 to December 2, 2009. As discussed, the evidence suggests that, as of this date, the Veteran was no longer able to maintain substantially gainful employment as a result of his service-connected disorders, particularly his depression and back disorder. The Board acknowledges that the criteria for a disability evaluation under the SSA system differ from the criteria set forth in VA regulations and that the Board is not bound by SSA findings. Notwithstanding, and in resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU rating is warranted. See 38 C.F.R. §§ 3.102, 4.16. While the effective date will be assigned by the RO, the Board again observes that substantially gainful employment appears to be shown to December 2, 2009. ORDER The appeal of the denial of service connection for a loss of vision (including cataracts) is dismissed. The appeal of the denial of service connection for eczema is dismissed. The appeal of the denial of service connection for alopecia is dismissed. The appeal of the denial of service connection for left leg radiculopathy, to include as secondary to service-connected back disability, is dismissed. The appeal of the denial of service connection for right elbow tendonitis is dismissed. The appeal of the denial of an initial evaluation greater than 10 percent for the service-connected hypertension is dismissed. Entitlement to a TDIU rating is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs