Citation Nr: 1802019	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-22 919A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an increased rating for service-connected low back spondylolysis with radicular numbness and degenerative disc disease (low back disability), currently evaluated as 40 percent disabling. 

2.  Entitlement to an increased rating for service-connected right carpal tunnel syndrome, currently evaluated as noncompensable prior to August 22, 2008 and 10 percent from August 22, 2008.  

3.  Whether new and material evidence has been submitted to reopen a previously denied service connection claim for hearing loss.  

4.  Entitlement to service connection for depression and anxiety.  

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



REPRESENTATION

Veteran represented by:	Stephanie D. Dobson, Attorney 


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Sorathia, Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to August 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and December 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio and Philadelphia, Pennsylvania.    

The Veteran testified before the undersigned Veterans Law Judge in August 2017.  A transcript of this hearing is associated with the claims file. 

The issue of entitlement to a TDIU was not certified for appeal.  However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the Veteran testified that he was unemployable due to his service-connected disabilities.  As such, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board.  
The issues of entitlement to increased ratings for low back disability and right carpal tunnel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In September 2017, VA received written notification expressing the Veteran's intent to withdraw his service connection claims.  

2.  The Veteran is unemployable as a result of his service-connected disabilities.    


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the service connection claims are met.  38 U.S.C. § 7105(d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for entitlement to TDIU are met.  38 U.S.C. §§ 1154(a), 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).
    

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissal 

The Board may dismiss any appeal that 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.  

During the August 2017 Board hearing, and in a September 2017 written statement, the Veteran expressed his intent to withdraw the service connection claim for depression and anxiety, as well as his petition to reopen the previously denied service connection claim for hearing loss.  Since the Veteran has withdrawn these issues, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the service connection claim for depression and anxiety and the petition to reopen the previously denied service connection claim for hearing loss.  

TDIU 

The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment.  

Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation 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, 3.34l, 4.16(a). 

Here, the Veteran is currently service-connected for low back disability (40 percent effective June 15, 2004); right shoulder disability (20 percent effective August 21, 2007); radiculopathy of the right lower extremity (20 percent effective March 5, 2016); radiculopathy of the left lower extremity (20 percent effective March 5, 2016); radiculopathy involving the femoral nerve of the right lower extremity (20 percent effective March 5, 2016); radiculopathy involving the femoral nerve of the left lower extremity (20 percent effective March 5, 2016); right knee disability (10 percent effective August 22, 2008); left knee disability (10 percent effective August 22, 2008); left hip disability (10 percent effective August 22, 2008); right hip disability (10 percent effective August 22, 2008); right carpal tunnel syndrome (10 percent effective August 22, 2008); and scar of scalp (noncompensable effective September 1, 1992).  The Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) effective August 22, 2008.  

Entitlement to a TDIU is based on an individual's particular circumstances, including education, training, and work history.  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); Beaty v. Brown, 6 Vet. App. 532 (1994).  The determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

The Veteran has a work history that has included being a police officer and working on machines.  It is his contention that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment.  

The medical evidence reveals that the Veteran has difficulty walking, standing, lifting, sitting, bending, griping, and writing.  Due to his service-connected disabilities, he uses a chair lift and wheelchair when he is at home and he uses a scooter when he is outside of his home.  He uses assistive devices to help him pick objects up since he has difficulty bending.  He testified during the Board hearing that his carpal tunnel syndrome of the dominant hand impacts his grip and that he cannot write more than two bills at one time and that he has difficulty using buttons and zippers.  He also stated that his service-connected shoulder disability makes it difficult for him to lift objects above his head due to limited range of motion.  
  
A 2008 VA examination report for the lumbar spine states that the Veteran is unemployable because he has difficulty walking more than five to ten minutes at a time.  An April 2008 letter from the Veteran's physician states that his shoulder, bilateral knee, and lumbar spine disabilities, in part, make it difficult for him to find gainful employment.  A 2017 VA examination report notes that the carpal tunnel syndrome of his dominant hand decreases his ability to perform fine motor skills.
  
VA examination reports from 2017 reveal that the Veteran would not be able to perform a physically demanding job due to his service-connected disabilities.  The examination reports do state that he can perform sedentary employment.  However, the examination reports do not consider the aggregate impact of his service-connected disabilities.  Moreover, the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

Given that the Veteran has limited abilities to walk, stand, bend, lift, sit, write, and grip objects due to his service-connected disabilities, and in light of this Veteran's work history, his service-connected disabilities in the aggregate exclude him from maintaining substantially gainful employment, both in a sedentary and physical environment.  Accordingly, entitlement to TDIU is warranted.   


ORDER

The issue of whether new and material evidence has been submitted to reopen a previously denied service connection claim for hearing loss is dismissed. 

Service connection for depression and anxiety is dismissed. 

Entitlement to TDIU is granted, subject to the applicable criteria governing the payment of monetary benefits.


REMAND

Since the April 2017 supplemental statement of the case, VA treatment records and several VA examination reports have been associated with the claims file that have not been reviewed by the AOJ.  Moreover, the Veteran has submitted treatment records and did not waive initial review of the new records by the AOJ.  Accordingly, the increased rating claims for low back disability and right carpal tunnel syndrome must be remanded in order for the AOJ to review the evidence in the first instance.      




Accordingly, the case is REMANDED for the following action:

After conducting any additional development deemed necessary, readjudicate the increased rating claims.  Consider the evidence associated with the claims file since the April 2017 supplemental statement of the case.  If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case.  The Veteran must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further Veteran consideration.   
   
The Veteran 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).




______________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs