Citation Nr: 1757534 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-15 716A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for high cholesterol. 3. Entitlement to service connection for a back disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Todd S. Hammond, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from June 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from September 2012 (service connection) and May 2013 (TDIU) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Travel Board hearing held at a RO before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the record. At the hearing, the undersigned Veterans Law Judge directed that the record be held open for 30 days for the Veteran to submit additional evidence. 38 C.F.R. § 20.709 (2017). That 30-day period has expired. FINDINGS OF FACT 1. On February 9, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issues of entitlement to service connection for hypertension, high cholesterol, and a back disorder is requested. 2. From February 1, 2012, to February 19, 2015, the Veteran's service-connected disabilities were posttraumatic stress (PTSD) with secondary major depressive disorder, diabetes mellitus with diabetic nephropathy, bilateral peripheral neuropathy of the lower extremities, hearing loss, and tinnitus. These service-connected disabilities were rated as 80 percent disabling during this time period with the psychiatric disorder being rated as 50 percent disabling. 3. Since February 20, 2015, the Veteran's service-connected disabilities have been coronary artery disease, PTSD with secondary major depressive disorder, diabetes mellitus with diabetic nephropathy, bilateral peripheral neuropathy of the lower extremities, hearing loss, and tinnitus. These service-connected disabilities have been rated as 90 percent disabling during this time period with the coronary artery disease and PTSD being rated as 60 percent and 50 percent disabling, respectively. 4. After resolving reasonable doubt in the Veteran's favor, his service-connected disabilities have rendered him unable to secure or follow all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for hypertension by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for high cholesterol by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for a back disorder by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for hypertension Entitlement to service connection for high cholesterol Entitlement to service connection for a back disorder 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. § 7105 (2012). 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 (2017). 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 has withdrawn the appeals of the issues of entitlement to service connection for hypertension, high cholesterol, and a back disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of the issues of entitlement to service connection for hypertension, high cholesterol, and a back disorder and they are dismissed. Entitlement to TDIU Governing law and regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM -IV) and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). The RO did not certify the case to the Board until September 2015 and as such, these claims are governed by DSM-V. Global assessment of functioning scores were removed from the DSM-V. The regulation change, however, does not remove global assessment of functioning scores from the record. These scores are still evidence that has to be considered and weighed. See VA Adjudication Procedure Manual M21-1, Part III.iv.3.A.6.e; VA Adjudication Procedure Manual M21-1, Part III.iv.4.H.1.k. Global assessment of functioning scores are assigned based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the DSM-IV, p. 32). A global assessment of functioning scores from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). See 38 C.F.R. § 4.130 (2014) (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). Analysis The Veteran filed his claim for TDIU in August 2012. From February 1, 2012, to February 19, 2015, the Veteran's service-connected disabilities were PTSD with secondary major depressive disorder, diabetes mellitus with diabetic nephropathy, bilateral peripheral neuropathy of the lower extremities, hearing loss, and tinnitus. These service-connected disabilities were rated as 80 percent disabling during this time period with the psychiatric disorder being rated as 50 percent disabling. Since February 20, 2015, the Veteran's service-connected disabilities have been coronary artery disease, PTSD with secondary major depressive disorder, diabetes mellitus with diabetic nephropathy, bilateral peripheral neuropathy of the lower extremities, hearing loss, and tinnitus. These service-connected disabilities have been rated as 90 percent disabling during this time period with the coronary artery disease and PTSD being rated as 60 percent and 50 percent disabling, respectively. Therefore, the Veteran met the criteria under 38 C.F.R. § 4.16(a) since February 1, 2012. The Veteran's February 2017 formal TDIU claim reflects that he had a career as a technician and office manager that ended on June 4, 2014. He reported that the most he ever earned in one year was $38,000, in 2010. He has a high school education with no other additional education and training. The Veteran completed a VA Form 21-4192 (request for employment information in connection with claim for disability ) because he was self-employed. He reported that in the last year of his business he only worked 20 hours a week but that he earned $36,000 in the last 12 months of his business. April 2012 VA examination reports reflect that the Veteran had no functional impact on his ability to work from his bilateral peripheral neuropathy of the lower extremities or from his diabetic nephropathy. The functional impact on his ability to work from his diabetes mellitus was that he fatigued easily and needed to take break in the middle of the work day. The April 2012 VA PTSD examination report reveals that his psychiatric disorder was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, and disturbances in motivation or mood. The examiner summarized the Veteran's level of occupational and social impairment as being an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner assigned a global assessment of functioning score of 55 for current impairment. The August 2012 VA audiological examination report shows that the Veteran reported that his hearing loss and tinnitus cause functional impairment because he has diminished ability to hear and understand conversation when there is background noise. The August 2015 VA heart examination report reflects that the examiner determined that physically demanding occupations would not be feasible due to the coronary artery disease. In August 2012, the Veteran reported that he was unemployable due to service-connected physical and psychiatric disorders. The Veteran, however, did not completely stop working until June 4, 2014. The February 2017 statement on employment and his hearing testimony reflect that he started working less in February 2012 and that he was working 20 hours or less a week during the last year of his self-employment, which was from June 2013 to June 2014. Thus, the Veteran worked less than full-time from February 1, 2012, to June 3, 2014. The Board must consider whether the Veteran had marginal employment from February 1, 2012, to June 3, 2014. The Veteran earned $36,000 in the last 12 months of his self-employment. He reported that he earned $38,000 in 2010. There is no evidence that his income in 2012 was greatly different than $38,000 he earned in 2010 or $36,000 he earned from June 2013 to June 2014. The poverty thresholds for a one person in 2012, 2013, and 2014, are $11,170; $11,490; and $11,670, respectively. See United States Department of Commerce, Bureau of the Census. The weight of evidence does not show that his annual income during the period from February 1, 2012, to June 3, 2014, did not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. As for a facts-found basis, the Veteran stated that his employer had a liberal absenteeism policy that allowed for three to four days off each week while maintaining his salary. His job duties were modified to avoid public contact, allow two extra breaks for 45 minutes each, no lifting over ten pounds, and written instructions for his job, with a job coach available. As of May 2014, he was not able to perform any of his assigned duties due to his PTSD, diabetes, and chest pain. The evidence shows that the service-connected coronary artery disease rendered him incapable of physical labor since February 20, 2015. As for sedentary employment, the evidence shows employment impairment from the service-connected psychiatric disorder, diabetes mellitus, hearing loss, and tinnitus since June 4, 2014. As for the psychiatric disorder, the April 2012 VA examiner assigned a global assessment of functioning score of 55 for current impairment, which represents moderate symptomatology. That examiner also determined that the occupational and social impairment was only manifested by an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. The Veteran, however, essentially testified that his psychiatric symptomology had worsened since the April 2012 VA examination. The Veteran is competent to report his psychiatric symptomatology, and the Board finds him credible. In light of the conflicting evidence about the severity of the psychiatric symptomology, the evidence is in equipoise as to whether the Veteran's service-connected disabilities have rendered him unable to secure or follow all forms of substantially gainful employment that are consistent with his education and occupational experience. Accordingly, entitlement to a total rating based on individual unemployability is in order. ORDER The issue of entitlement to service connection for hypertension is dismissed. The issue of entitlement to service connection for high cholesterol is dismissed. The issue of entitlement to service connection for a back disorder is dismissed. (CONTINUED ON NEXT PAGE) Entitlement to a total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs