Citation Nr: 1800699 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 08-07 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, adjustment disorder, and depression. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left foot disability. 4. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease for the period prior to July 18, 2008, and a rating in excess of 40 percent thereafter. 5. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), as of July 18, 2008. REPRESENTATION Appellant represented by: Robert A. Donati, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from January 1986 to May 1986 and from March 1990 to March 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). An August 2006 rating decision denied service connection for a right knee disorder, and reduced the rating for the Veteran's service-connected lumbar spine degenerative disc disease from 20 to 10 percent, effective January 26, 2006. A September 2009 rating decision denied entitlement to a TDIU. A February 2012 rating decision denied service connection for PTSD and determined that new and material evidence sufficient to reopen the previously denied claims of entitlement to service connection for depression and adjustment and bipolar disorders had not been received. In November 2007, the RO granted a temporary total rating for the Veteran's service-connected lumbar spine degenerative disc disease under the provisions of 38 C.F.R. § 4.30 (2017) for the period from November 4, 2007, to December 31, 2007. In August 2008, the RO increased the rating for the Veteran's service-connected lumbar spine degenerative disc disease from 10 to 40 percent, effective July 18, 2008. In April 2010, the Board determined that the reduction of the evaluation of the rating for the Veteran's lumbar spine degenerative disc disease from 20 to 10 percent, effective January 26, 2006, was improper and remanded the remaining issues to the Agency of Original Jurisdiction (AOJ) for additional development. In July 2013, the Board determined that new and material evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a right knee disorder had been received and remanded the service connection issue, with the issues of entitlement to increased ratings for a service-connected lumbar spine degenerative disc disease and a TDIU to the AOJ for additional development. In August 2015, a Decision Review Officer (DRO) issued a rating decision granting compensable separate ratings for radiculopathy of the bilateral lower extremities, secondary to his service-connected lumbar spine degenerative disc disease, 10 percent effective September 3, 2011, and 20 percent, effective December 20, 2014. At his hearing before the Board in June 2017, the Veteran stated that he was satisfied with the ratings assigned for his bilateral lower extremity radiculopathy and did not want to pursue those claims on appeal. Thus, they are not currently before the Board. The Veteran also testified that if a TDIU is granted from July 18, 2008, forward, this would satisfy his appeal of all of his claims. Thus, the TDIU claim is characterized as set forth on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's service-connected disabilities meet the schedular criteria for assignment of a TDIU and are reasonably shown to render him unable to secure and follow a substantially gainful occupation as of July 18, 2008. 2. During the Veteran's June 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of his claims on appeal, to include: (1) whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, adjustment disorder, and depression; (2) entitlement to service connection for PTSD; (3) entitlement to service connection for a right knee disability, to include as secondary to a service-connected left foot disability; and (4) entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease for the period prior to July 18, 2008, and a rating in excess of 40 percent thereafter, contingent on the award of a TDIU as of July 18, 2008. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met, as of July 18, 2008. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). 2. The criteria for withdrawal of a substantive appeal on the issues of: (1) whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, adjustment disorder, and depression; (2) entitlement to service connection for PTSD; (3) entitlement to service connection for a right knee disability, to include as secondary to a service-connected left foot disability; and (4) entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease for the period prior to July 18, 2008, and a rating in excess of 40 percent thereafter, have been met. 38 U.S.C.A. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TDIU Under VA regulations, a TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it shall be ratable at 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a Veteran is entitled to a TDIU, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for lumbar spine degenerative disc disease, rated as 40 percent disabling, effective July 18, 2008, and left and right foot disabilities, radiculopathy of the bilateral lower extremities, a scar, and a left ankle disability. The Veteran's total combined rating was 70 percent, effective July 18, 2008, and is 90 percent currently. As such, he meets the schedular criteria for a TDIU since July 18, 2008, the date upon which the Veteran asserts satisfaction with any award of a TDIU, discussed below. Id. The Veteran asserts that his functional limitations from his service-connected disabilities, specifically, his lumbar spine and bilateral feet disabilities, render him too disabled to work. During his June 2017 Board hearing, he asserted that he last worked in 2007, as an electrician and maintenance person at an apartment complex, but that he could not return to work after an October 2007 spine surgery, as he had to constantly go back and forth to the hospital for treatment and was unable to walk a long distance. He complained that he was unable to stand for longer than eight or ten minutes, and that he used a cane for balance. He reported that he could not walk a long distance without the use of his device and had difficulty bending or squatting. He reported that he did not climb or stoop anymore. He noted that VA had recently adapted his home with bathroom and bedroom equipment to help him move around. He reported that he used prescription narcotic pain and muscle relaxer medications. He concluded that most of his prior jobs have been physical labor and he did not think that he could do a seated job due to pain, and that he had a high school diploma. He asserted entitlement to a TDIU, effective July 18, 2008, and reported that the award of such would satisfy the appeal as to all of his claims. The Veteran was provided with VA examinations for his various service-connected disabilities during the course of the appeal. On VA examination in January 2009, the Veteran reported that he was fired from last job due to his inability to perform maintenance work, and the examiner opined that the Veteran's spine and feet disabilities would not render him unemployable, that he is capable of performing sedentary or light level work, and that he was limited in his ability to complete frequent bending and lifting, and continued standing and walking. On VA examination in April 2012, the examiner reported that the Veteran had pain with bending, stooping, and lifting, and that walking and standing were painful, but that such would not affect sedentary work. Similar opinions were rendered at July 2014 and December 2014 VA examinations. However, report of a VA general medical examination in January 2009 indicates that the examiner concluded that the Veteran was medically disabled and unable to work at usual employment. Also, one of the Veteran's private treatment providers submitted a June 2016 statement wherein he reported that the Veteran would not be able to work a regular eight-hour day for five-day weeks. The record includes a September 2016 private vocational evaluation submitted by the Veteran's attorney. The vocational rehabilitation specialist interviewed the Veteran and noted reviewing the extensive evidence of record within the claims file. After reviewing the Veteran's reports and complaints regarding his limitations for standing, walking, bending, lifting, stooping, and climbing, as discussed above, and his work and pertinent medical history, the private consultant provided an opinion that the combination of the Veteran's service-connected disabilities would render him unemployable, even in a sedentary capacity. He reported that the Veteran is more likely to experience days in which his disabilities prevent him from attending work on a regular basis or cause him to need additional breaks outside of what is usual, customary, and accepted by an employer. He considered that although an employer may be able to tolerate three or five sick days per year, the Veteran's symptoms would likely result in more frequent sick days and as such, traditional gainful employment would be impossible. He also considered that it was highly likely that the Veteran would require accommodations to an extent that would not be tolerated by an employer in a competitive market. He also noted that the Veteran's narcotic pain medications interrupted his concentration and limited his ability to complete tasks. The Board finds that the September 2016 private vocational opinion should be accorded significant probative weight, as it was based on full consideration of the Veteran's documented history and assertions, and is supported by a clearly-stated rationale. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). While VA examination reports of record generally include opinions indicating somewhat less functional impairment than that found by the private consultant, none included consideration of his past work history, education and skill level, impairment from prescription pain medications, and consideration of limitations even in a sedentary position. Such limits the probative value of the VA examination opinions. Based on the forgoing and resolving all doubt in favor of the Veteran, as is required by law, the Board finds that the evidence, specifically, the September 2016 private vocational opinion that the Veteran can no longer maintain full-time gainful employment due to his service-connected disabilities, supports the conclusion that the Veteran is unemployable. A TDIU is thus granted, effective July 18, 2008, the date upon which the Veteran met the schedular requirements and the date upon which the Veteran asserted satisfaction with any award of a TDIU. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal of an appeal may be made by the appellant or by his authorized representative prior to the Board's issuance of a final decision. 38 C.F.R. § 20.204. Until the appeal is transferred to the Board, a withdrawal of an appeal is effective when received by the agency of original jurisdiction. Thereafter, it is not effective until received by the Board. During the Veteran's June 2017 Board hearing, he asserted that he would withdraw his claims on appeal, to include: (1) whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, adjustment disorder, and depression; (2) entitlement to service connection for PTSD; (3) entitlement to service connection for a right knee disability, to include as secondary to a service-connected left foot disability; and (4) entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease for the period prior to July 18, 2008, and a rating in excess of 40 percent thereafter, contingent on the award of a TDIU as of July 18, 2008, by the Board. As discussed above, a TDIU is being granted; the necessary and sufficient conditions for withdrawal of the appeals remaining before the Board have thus been met. The Board therefore finds that the Veteran had withdrawn his appeals. The withdrawal was memorialized in the hearing transcript, prior to the issuance of a final decision on this matter. The withdrawal was thus made in the form and manner required by 38 C.F.R. § 20.204. The filing, then, effectively withdrew the relevant Notice of Disagreement and Substantive Appeal; accordingly, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. The Board, therefore, does not have jurisdiction over the appeal of these claims, and the appeals must be dismissed. ORDER Entitlement to a TDIU is granted, effective from July 18, 2008, forward. The claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, adjustment disorder, and depression, is dismissed. The claim of entitlement to service connection for PTSD is dismissed. The claim of entitlement to service connection for a right knee disability, to include as secondary to a service-connected left foot disability, is dismissed. The claim of entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease for the period prior to July 18, 2008, and a rating in excess of 40 percent thereafter, is dismissed. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs