Citation Nr: 1752984	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  10-32 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

3.  Entitlement to service connection for dental trauma, claimed as missing teeth.

4.  Entitlement to service connection for bilateral hearing loss disability.

5.  Entitlement to service connection for a fungal disorder of the toenails.

6.  Entitlement to higher initial evaluations for lumbar degenerative disc disease with degenerative joint disease and intervertebral disc syndrome, rated as 10 percent disabling prior to August 30, 2012, and as 20 percent disabling from that date.

7.  Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatica.
8.  Entitlement to higher initial evaluations for intervertebral disc syndrome of the cervical spine, rated as 10 percent disabling prior to August 30, 2012, and as 20 percent disabling from that date.

9.  Entitlement to an initial evaluation in excess of 20 percent for left upper extremity radiculopathy. 

10.  Entitlement to an initial evaluation in excess of 10 percent for the period prior to February 27, 2014, and in excess of 20 percent thereafter for degenerative changes of the left glenohumeral joint.

11.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran had active service from July 1962 to July 1965.

This matter comes before the Board of Veterans' Appeals (Board) from January 2009 and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The case was most recently before the Board in February 2015 when it was remanded for additional development.


FINDINGS OF FACT

1.  The Veteran's service-connected disability precludes substantially gainful employment effective January 14, 2008.

2.  In July 2017 and August 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant and his representative, that a withdrawal of the appeals of the issues of entitlement to service connection for hypertension, GERD, dental trauma, bilateral hearing loss, and a fungal disorder of the toenails; and claims for increased rating for lumbar degenerative disc disease, left lower extremity sciatica, intervertebral disc syndrome of the cervical spine, left upper extremity radiculopathy, and degenerative changes of the left glenohumeral joint is requested.


CONCLUSIONS OF LAW

1.  The criteria for an award of TDIU, effective January 14, 2008, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2017).

2.  The criteria for withdrawal of the appeals of the issues of entitlement to service connection for hypertension, GERD, dental trauma, bilateral hearing loss, and a fungal disorder of the toenails; and claims for increased rating for lumbar degenerative disc disease, left lower extremity sciatica, intervertebral disc syndrome of the cervical spine, left upper extremity radiculopathy, and degenerative changes of the left glenohumeral joint have been met.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  TDIU

In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(c).  In reaching such a determination, 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 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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).  For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology, from a single accident, or disabilities affecting a single body system are considered to be one disability.  Id.

From January 14, 2008, the Veteran was in receipt of service-connected benefits for left upper extremity radiculopathy associated with cervical spine degenerative joint disease with intervertebral disc syndrome, evaluated as 20 percent disabling, effective January 14, 2008; cervical spine degenerative joint disease with intervertebral disc syndrome, evaluated as 10 percent disabling effective January 14, 2008, and 20 percent effective August 30, 2012; degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome and scar, evaluated as 10 percent disabling effective January 14, 2008, and 20 percent disabling effective August 30, 2012; right upper extremity radiculopathy associated with cervical spine degenerative joint disease with intervertebral disc syndrome, evaluated as 30 percent disabling effective January 14, 2008, noncompensable effective August 30, 2012, and 20 percent disabling effective March 11, 2013; left shoulder glenohumeral joint osteoarthritis, evaluated as 10 percent disabling effective January 14, 2008, and 20 percent disabling effective February 27, 2014; left sciatic nerve associated with degenerative arthritis, thoracolumbar spine, with intervertebral disc syndrome and scar, evaluated as 10 percent disabling effective August 30, 2012.  These disabilities represent disabilities arising from a common etiology, the same accident, or affect a single body system.  Thus, they are considered to be a single disability for the purposes of meeting the schedular criteria for award of a TDIU.  See 38 C.F.R. § 4.16 (a).  The Board notes that these disabilities have a combined evaluation of at least 60 percent disabling for the period beginning January 14, 2008.  38 C.F.R. § 4.25.  Thr Veteran is also in receipt of service-connected benefits for tinnitus and scar, anterior chin.  Therefore, as the Veteran has a single disability for VA purposes evaluated as 60 percent disabling, the Veteran meets the schedular criteria for award of a TDIU beginning January 14, 2008.

On a VA Form 21-8940, Application for TDIU, received in July 2013, the Veteran reported that he last worked full-time in 1997 and he specifically cited severe back and shoulder pain as the reason he was no longer able to work.  His education history included a GED and one year of college; his previous work experience was as "instructor." 

A Social Security earnings record associated with the claims file indicates that the Veteran had no taxed Social Security earnings for the period beginning 2001.

In a statement dated in July 2017 the Veteran reported that he had an inability to walk more than 50 feet, to walk unassisted, to sit for an extended time, to stand for more than a few minutes without using support, to lay in the prone for more than a couple of hours, to bend down to retrieve fallen items, to bath and dry self, to dress and undress without assistance, to place socks and shoes on without assistance, to turn or twist at the waist, to reach or stoop, to not be in close proximity to a rest room, and to hear clearly due to tinnitus.  The Veteran was restricted in driving or other activities due to prescribed medications.  

In a statement dated in July 2017 the Veteran's spouse reported that she assisted the Veteran with personal hygiene, including bathing, drying, applying lotion and salves, cutting nails and changing underwear.  She assisted with purchasing food, preparing meals, cleaning and washing utensils, and insuring medication was taken.  She reported assisting the Veteran with dressing and undressing.  She supported the Veteran with cleaning.  She reported assisting the Veteran with walking and picking up items and attending medical appointments.

A private opinion was submitted in support of the claim in August 2017.  The opinion provider reported that he reviewed the relevant medical records, layperson statements, medical opinions, and historical treatment records with regard to the Veteran.  He noted that due to injuries caused by parachute jump training, the Veteran was currently service-connected for a number of disabilities, including degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome, degenerative arthritis of the cervical spine with intervertebral disc syndrome, osteoarthritis of the left shoulder glenohumeral joint, and resulting radiculopathy of the bilateral upper and lower extremities.  The provider also noted that the Veteran suffered from tinnitus and hearing loss related to military noise exposure.  The provider reported that the Veteran worked as a police officer and then as a firearms instructor after service.  The Veteran reported that this low back and shoulder pain prevented him from being able to stand in class or walk any distance and he had not worked in a gainful position since 1997.

After a thorough recitation of the Veteran's history and impairments for the period from 2008 onward, the opinion provider stated that:

After a thorough review of [the Veteran's] service medical records, medical opinions, and current medical literature on the subject, I find it is as likely as not that due to his service[-]connected low back disability, cervical spine and shoulder disabilities as well as his hearing loss, he was incapable of any employment, even in a sedentary setting, since at least 1997.

The opinion provider continued to discuss a definition of sedentary employment and reported:

Given [the Veteran's] daily exacerbations of severe pain provoked by prolonged standing, sitting and ambulation, necessitating the use of muscle relaxants and opioid pain medications to treat his pain, it is clear that his disabilities have prevented him from maintaining even sedentary employment.

Based upon the private medical opinion, the statements of the Veteran, and the earned income report submitted by the Veteran's representative, and with consideration of the Veteran's education and work history, the Board finds that the Veteran is unemployable due to his service-connected disabilities since January 14, 2008.  Therefore, entitlement to a TDIU, effective January 14, 2008, is granted. 

II.  Withdrawal

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.  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.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In a statement dated in July 2017, the Veteran indicated that he wished to withdraw the issues of entitlement to service connection for hypertension, GERD, dental trauma, bilateral hearing loss, and a fungal disorder of the toenails; and claims for increased rating for lumbar degenerative disc disease, left lower extremity sciatica, intervertebral disc syndrome of the cervical spine, left upper extremity radiculopathy, and degenerative changes of the left glenohumeral joint.

In addition, in an August 2017 statement submitted by the Veteran's representative it was reported that "[i]f [the Board] grants TDIU from January 14, 2008 onward, then [the Veteran] will consider this a full grant of the benefits sought on appeal and will withdraw any pending appeals at that time."

As the Board above grants entitlement to TDIU, effective January 14, 2008, the Board finds that the remaining issues are withdrawn.  Accordingly, the Board does not have jurisdiction to review the appeals of the issues other than TDIU and they are dismissed.


ORDER

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted effective January 14, 2008. 

Entitlement to service connection for hypertension is dismissed.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed.

Entitlement to service connection for dental trauma, claimed as missing teeth is dismissed.

Entitlement to service connection for bilateral hearing loss disability is dismissed.

Entitlement to service connection for a fungal disorder of the toenails is dismissed.

Entitlement to higher initial evaluations for lumbar degenerative disc disease with degenerative joint disease and intervertebral disc syndrome, rated as 10 percent disabling prior to August 30, 2012, and as 20 percent disabling from that date, is dismissed.

Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatica is dismissed.

Entitlement to higher initial evaluations for intervertebral disc syndrome of the cervical spine, rated as 10 percent disabling prior to August 30, 2012, and as 20 percent disabling from that date, is dismissed.

Entitlement to an initial evaluation in excess of 20 percent for left upper extremity radiculopathy is dismissed.

Entitlement to an initial evaluation in excess of 10 percent for the period prior to February 27, 2014, and in excess of 20 percent thereafter for degenerative changes of the left glenohumeral joint, is dismissed.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs