Citation Nr: 1603624 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-27 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for benign positional vertigo prior to April 16, 2013, and in excess of 30 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran presented sworn testimony at a hearing before the undersigned in October 2015. A transcript of that hearing is of record. The Veteran testified at the hearing that he cannot work because of his service-connected disabilities. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU prior to October 1, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to the issuance of a decision in the appeal, the Veteran withdrew his claims of service connection for bilateral hearing loss and for a higher staged rating for benign positional vertigo. 2. The evidence shows that the Veteran is precluded from obtaining and maintaining gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim of service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of a claim for a higher staged rating for benign positional vertigo have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the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. At the October 2015 hearing before the Board, the Veteran withdrew his appeal in connection with his claims of service connection for bilateral hearing loss and for a higher staged rating for benign positional vertigo. See October 2015 Hearing Tr. at 2. Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. II. TDIU The Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation, and he is thus entitled to a TDIU pursuant to 38 C.F.R. § 4.16(a). It is the established policy of the 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. A total disability will be considered to exist 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. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Here, the Veteran is service connected for multiple disabilities. In such a case, a veteran is entitled to a "schedular" TDIU when he or she is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and has at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this instance, when determining whether the veteran has one disability ratable at 40 percent or more, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). The Veteran met the schedular criteria for a TDIU on October 1, 2014. In a May 2015 rating decision, the Veteran was granted service-connection for coronary artery disease as secondary to his service-connected hypertension. He was assigned a 100 percent schedular rating effective June 16, 2014, and a 30 percent rating effective October 1, 2014. At that time he was also in receipt of a 10 percent rating for his service-connected hypertension and a 10 percent rating for his right eye macula associated with hypertension. As these disabilities result from a common etiology, they are considered one disability for the purposes of TDIU. 38 C.F.R. § 4.16(a). The combined disability evaluation for these disabilities is 40 percent. 38 C.F.R. § 4.25. Additionally, as of October 1, 2014, the Veteran's service-connected disabilities also included: kidney stones rated at 30 percent, benign positional vertigo rated at 30 percent, left knee chondromalacia patella rated at 10 percent, right foot disability rated at 10 percent and additional conditions for which he received noncompensable ratings. When combined with the ratings for his hypertension and related conditions, his total combined rating is 80 percent. Thus, the Veteran meets the schedular criteria for a TDIU as of October 1, 2014. The Board further finds that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. The Board notes that the Veteran has a high school diploma with no further education, and that he has worked in the same labor position since his separation from service. See October 2015 Application for Increased Compensation Based on Unemployability. He testified that he had to retire from his position as a custodian/maintenance worker for the U.S. Postal Service because he could no longer perform his job duties due to his service-connected vertigo, left knee and coronary artery disease disabilities. See Hearing Tr. at 9. He reported that he could no longer pick things up, turn quickly, or operate heavy machinery, including a forklift. See Hearing Tr. at 4-9. An April 2013 VA treatment note shows that the Veteran staggers if he stands up from a sitting position and experiences vertigo for approximately 30 seconds. See April 2013 VA Medical Record. At an April 2013 examination by his treating doctor, the Veteran was found to ambulate with rigid trunk and neck and limited head rotation. He was able to stand up, but found to be unsteady after taking a few steps. See April 2013 Private Examination Report. His treating doctor reported that he has abnormal gait during activity and experiences ongoing episodes of vertigo of varying degree, oftentimes with staggering. She opined that his vertigo causes him difficulty in performing his activities of daily living. With regard to his service-connected left knee disability, an October 2013 VA examiner reported that the Veteran experiences flare-ups of stiffness and pain approximately two to three times a week lasting most of the day, during which he cannot perform his activities. The examiner found that the Veteran's right knee is compensating for the left knee, causing strain in the right knee. See October 2013 VA Examination Report. The examiner further found that the Veteran's left knee condition prevented him from lifting more than 15 pounds for a few minutes, walking more than one block at a time or more than 45 minutes in an eight hour period, sitting for more than one hour at a time or more than four hours in an eight hour period, and standing for more than 20 minutes at a time or more than two hours in an eight hour period. Finally, concerning his coronary artery disease, an April 2015 VA examiner found that the Veteran experiences dizziness when performing activities such as walking one flight of stairs, mowing the lawn or performing heavy yard work. The examiner opined that the Veteran would be able to perform the technical aspects of his job, but that his heart condition limited his endurance, which prohibits full job performance. In light of this evidence, the Board finds that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. Thus, the assignment of a schedular TDIU is warranted. 38 C.F.R. § 4.16(a). ORDER The appeal regarding the claim of service connection for bilateral hearing loss is dismissed. The appeal regarding the claim of entitlement to a rating in excess of 10 percent for benign positional vertigo prior to April 16, 2013, and in excess of 30 percent thereafter, is dismissed. Entitlement to a TDIU is granted effective October 1, 2014, subject to the law and regulations governing the payment of VA monetary benefits. REMAND The record shows that the Veteran stopped working in December 2013, and he reports that this was as a result of his service-connected disabilities. The Board notes that he did not meet the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a) as of December 2013 because, although his combined rating was 70 percent, he did not have one service-connected disability rated at 40 percent (or higher). Nevertheless, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director, Compensation Service (Director), for extraschedular consideration of entitlement to a TDIU. See 38 C.F.R. § 4.16(b) (2015). The Board cannot grant an award of a TDIU under section 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the issue of entitlement to a TDIU prior to June 16, 2014, has not been referred to the Director for extraschedular consideration, it must be remanded so that this may be accomplished. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. §§ 3.159(b), 4.16(b) (2015) that includes an explanation of the information or evidence needed to establish a claim of entitlement to a TDIU prior to June 16, 2014. 2. After completing the above development and any other development deemed necessary, refer the issue of entitlement a TDIU prior to June 16, 2014 to the Director, Compensation Service. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs