Citation Nr: 1803907 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-38 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for a period beginning May 15, 2015. 2. Entitlement to an extraschedular TDIU for the period prior to May 15, 2015. 3. Entitlement to an increased disability rating for service-connected bilateral hearing loss. 4. Entitlement to an increased disability rating for service-connected osteoarthritis of the lumbar spine. 5. Entitlement to an earlier effective date for the award of service connection for osteoarthritis of the lumbar spine. 6. Entitlement to an increased disability rating for service-connected radiculopathy of the left lower extremity. 7. Entitlement to an earlier effective date for the award of service connection for radiculopathy of the left lower extremity. 8. Entitlement to an increased disability rating for service-connected radiculopathy of the right lower extremity. 9. Entitlement to an earlier effective date for the award of service connection for radiculopathy of the right lower extremity. REPRESENTATION Veteran represented by: Carol Ponton, Attorney ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Air Force from August 1973 to August 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) The Board notes that this case has been considered as part of a pilot prehearing conference program (PHC). The issue of entitlement to an extraschedular TDIU for the period prior to May 15, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. Beginning May 15, 2015, the probative, competent evidence demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. . 2. In lieu of a hearing, the Veteran through counsel withdrew issues 3 through 9 in January 2018 written correspondence. CONCLUSIONS OF LAW 1. Beginning May 15, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 2. The criteria for withdrawal of the Veteran's appeal on the claims of entitlement to increased ratings for service-connected bilateral hearing loss, osteoarthritis of the lumbar spine, radiculopathy of the left and right lower extremity, and entitlement to earlier effective dates for the grant of service connection for osteoarthritis of the lumbar spine, and radiculopathy of the right and left lower extremity have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In the present case, in January 2018 the Veteran through counsel withdrew from consideration the issues of entitlement to increased ratings for service-connected bilateral hearing loss, osteoarthritis of the lumbar spine, radiculopathy of the right and left lower extremities, and entitlement to earlier effective dates for the grant of service connection for osteoarthritis of the lumbar spine and radiculopathy of the right and left lower extremities. As the Veteran has withdrawn his appeals regarding these issues, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals on those issues, and they are dismissed TDIU Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the veteran to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). 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 as 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 and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). In this case, the Veteran is in receipt of a 60 percent combined disability rating as of May 15, 2015, and the minimum schedular criteria for a TDIU are met as of that date. The next question is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Upon review, the Board finds the evidence demonstrates that the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation since May 15, 2015. The Veteran has developed a spinal disability which caused several complications, to include radiculopathy of both lower extremities. He also has service-connected disabilities of bilateral hearing loss and tinnitus. The Veteran was employed doing installations for a plumber until late 2009, at which time he stopped working due to his lower back pain. The Board notes that the Veteran has a high school education but received no other special vocational training, and that he mainly did construction work since separating from service. He asserted in a written statement that he had been unable to do heavy construction beginning in 2002. The Veteran asserted in a written statement that he had back pain that had gotten worse over the years. He indicated that if he bent over he was unable to stand up, and that he had a stabbing pain in the back. The Veteran asserted that his legs would go numb and he was never certain whether he could put weight on the legs. He also noted that he had hearing loss and that while he had hearing aids he still had difficulty hearing with any competing noise. In April 2011 the Veteran underwent VA examination in connection with his hearing loss and tinnitus claim. At the time the VA examiner indicated that the Veteran's hearing loss and tinnitus caused significant effects on the Veteran's occupational abilities. The following month the Veteran underwent VA examination in connection with his spinal claim, and after the physical examination the VA examiner indicated that the back disability would cause decreased mobility and problems with lifting and carrying. In December 2012 the Veteran underwent a physical examination with an independent medical examiner, Dr. D.T. The examiner mainly focused on the Veteran's spinal claim, but noted that the Veteran had difficulty getting out of a chair when being evaluated, suggesting a difficulty with mobility. In April 2014 the Veteran again underwent examination with an independent medical examiner, Dr. D.L. The medical examiner reviewed the Veteran's spinal treatment, and on physical examination the Veteran had a reduced range of motion in the spine. The medical examiner noted that the Veteran had been unable to secure or follow a substantially gainful occupation as a result of his lumbar disability and radiculopathy since 2009. The medical examiner concluded that the Veteran's inability to work was the result of ongoing signs and symptoms in the lumbar spine and left leg. Approximately one year later, the Veteran's TDIU claim was evaluated by an independent medical examiner, Dr. J.S. After a review of the file, the examiner opined that the Veteran was not able to sit, stand, or walk for prolonged periods; he noted that the Veteran's legs would go numb when sitting. The examiner indicated that sitting, driving, or riding in vehicles would aggravate the pain. The Board finds that the combination of the medical evidence and the opinions of the medical examiners support the finding that the Veteran was precluded from working. It is noteworthy that both of the VA examiners for the Veteran's hearing loss and spine noted that the Veteran would have significant occupational limitations due to his service-connected disabilities, and that therefore the combination of these impairments would preclude employment beginning in May 2015. In making this determination the Board has given great weight to the Veteran's lay statements describing his limitations as well as the opinions of the VA examiners and independent medical examiners, when viewed together. These opinions are based on a review of the claims file as well as in some instances a physical examination of the Veteran. The Board notes that the Veteran's past work was in construction and installation, which is at least medium in exertional level. Sedentary work is often skilled in nature, and the Veteran has only a high school education. He has not worked in skilled employment based on the evidence of record. In addition, given the multiple disabilities and difficulty hearing it would appear difficult for the Veteran to continuously work in a sedentary position as well. The Board finds that the sum of the evidence suggests that the Veteran would be unable to do sedentary employment and that his service-connected disability combination would preclude him from obtaining substantial gainful employment. However, the Board notes that the Veteran did not meet the schedular criteria for a TDIU until May 15, 2015, and therefore the Board may only grant the claim as of that date. In reviewing the evidence, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. Accordingly, entitlement to a TDIU is warranted beginning May 15, 2015. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As this decision represents a full grant of the Veteran's claim for TDIU, there is no need to discuss the Board's duty to notify and assist. ORDER Entitlement to a TDIU beginning May 15, 2015, is granted. Entitlement to an increased disability rating for service-connected bilateral hearing loss is dismissed. Entitlement to an increased disability rating for service-connected osteoarthritis of the lumbar spine is dismissed. Entitlement to an earlier effective date for the award of service connection for osteoarthritis of the lumbar spine is dismissed. Entitlement to an increased disability rating for service-connected radiculopathy of the left lower extremity is dismissed. Entitlement to an earlier effective date for the award of service connection for radiculopathy of the left lower extremity is dismissed. Entitlement to an increased disability rating for service-connected radiculopathy of the right lower extremity is dismissed. Entitlement to an earlier effective date for the award of service connection for radiculopathy of the right lower extremity is dismissed. REMAND Prior to May 15, 2015, the combined rating of the Veteran's service-connected disabilities was 50 percent or less and he did not have additional disabilities that combined to 70 percent or greater. This does not meet the jurisdictional requirements of 38 C.F.R. § 4.16(a). The Board does not have jurisdiction to grant TDIU in the first instance. Therefore, a remand is necessary for the case to be referred to the Director of Compensation and Pension Services for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). Accordingly, the case is REMANDED for the following actions: 1. Refer the case to the Director, Compensation and Pension Service, for extraschedular consideration of a TDIU for the period prior to May 15, 2015. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 2. If an extraschedular TDIU is not granted, provide the Veteran and his attorney with a supplemental statement of the case and allow an adequate time to respond thereto. Then return the case to the Board, if otherwise in order. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs