Citation Nr: 1804057	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  16-41 403	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for cold injury residuals, left foot.

2.  Entitlement to a rating in excess of 30 percent for cold injury residuals, right foot.

3.  Entitlement to a rating in excess of 20 percent for cold injury residuals, left hand.

4.  Entitlement to a rating in excess of 20 percent for cold injury residuals, right hand.

5.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

6.  Entitlement to a compensable rating for bilateral hearing loss prior to August 15, 2016, a rating in excess of 10 percent from August 15, 2016, to September 11, 2017, and a rating in excess of 20 percent thereafter.

7.  Entitlement to service connection for a heart condition, diagnosed as coronary artery disease.

8.  Entitlement to service connection for a back disability, diagnosed as status post laminectomy degenerative changes of the lumbar spine.

9.  Entitlement to service connection for a neck disability.

10.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Karl Kazmierczak, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

J. T. Brant, Counsel


INTRODUCTION

The Veteran served on active duty from December 1950 to September 1952.

This appeal comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  
In October 2017, the Veteran testified before the undersigned at a video conference hearing.  A transcript of that hearing is associated with the claims file.  

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.  In October 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeals for entitlement to increased ratings for cold injury residuals of the right and left foot, cold injury residuals of the right and left hand, PTSD, and bilateral hearing loss, and service connection for a heart condition, a back disability, and a neck disability, is requested.

2.  For the entire period on appeal, the Veteran has been unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to a rating in excess of 30 percent for cold injury residuals, left foot, by the Veteran, 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 the issue of entitlement to a rating in excess of 30 percent for cold injury residuals, right foot, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


3.  The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for cold injury residuals, left hand, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for cold injury residuals, right hand, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

5.  The criteria for withdrawal of the issue of entitlement to a rating in excess of 50 percent for PTSD, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

6.  The criteria for withdrawal of the issue of entitlement to a compensable rating for bilateral hearing loss prior to August 15, 2016, a rating in excess of 10 percent from August 15, 2016, to September 11, 2017, and a rating in excess of 20 percent thereafter, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

7.  The criteria for withdrawal of the issue of entitlement to service connection for a heart condition, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

8.  The criteria for withdrawal of the issue of entitlement to service connection for a back disability, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

9.  The criteria for withdrawal of the issue of entitlement to service connection for a neck disability, by the Veteran, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

10.  For the entire period on appeal, the criteria for entitlement to TDIU are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Dismissals

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, in his October 2017 video conference hearing and in a submission that same month, has withdrawn the appeals of entitlement to increased ratings for cold injury residuals of the right and left foot, cold injury residuals of the right and left hand, PTSD, and bilateral hearing loss, and service connection for a heart condition, a back disability, and a neck disability.  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 these issues and they are dismissed.

II.  TDIU

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).

Here, the Board finds that for the entire period on appeal, a TDIU is warranted based on the combined effects from Veteran's service-connected disabilities.  

At the outset, the Board notes that during this timeframe, the Veteran was in receipt of service connection for PTSD, rated at 50 percent; cold injury residuals, left foot, rated at 30 percent; cold injury residuals, right foot, rated at 30 percent; cold injury residuals, left hand, rated at 20 percent; cold injury residuals, right hand, rated at 20 percent; bilateral hearing loss, rated at 0 percent, 10 percent, and then 20 percent; and tinnitus, rated at 10 percent.  As such, his combined evaluation during this timeframe met the schedular percentage requirements for a TDIU.  

Additionally, the evidence demonstrates that during this timeframe, the Veteran was unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities.

On various VA Forms 21-8940, Veteran's Application for Increased Compensation based on Unemployability, the Veteran noted that he had a high school education.  He reported that he last worked full-time as a real estate agent at Coldwell Banker until 2007, which he indicated was the date his disabilities affected his full-time employment.  In a statement dated in January 2013, the Veteran's previous employer at Coldwell Banker indicated that the Veteran was unable to continue working due to his health problems.  

In various submissions and VA examinations, the Veteran described his service-connected cold injury residuals in the feet and hands, bilateral hearing loss, and PTSD as disabilities preventing him from maintaining gainful employment.  For example, in a brief dated in March 2017, the Veteran's representative noted that the Veteran's service-connected PTSD caused him to suffer from anger outbursts and an inability to get along with others.  The representative asserted that these symptoms most definitely precluded any substantial gainful employment.  In his October 2017 hearing, the Veteran testified that he had difficulty walking as a result of his cold injury residuals of the feet.  He testified that he had difficulty using his hands, making it hard to type or write, as a result of the cold injury residuals of the hands.  The Veteran described an anger problem as a result of his PTSD, making it difficult to get along with any kind of supervisor.  Moreover, in numerous VA examinations, the Veteran described difficulty understanding dialogue in many situations as a result of his service-connected hearing loss.

Given the Veteran's credible lay statements regarding the impact of his service-connected disabilities on his ability to work and the functional limitations described by the VA examiners, the Board finds that the Veteran's service-connected disabilities likely prevented him from obtaining and maintaining gainful employment throughout the entire timeframe on appeal.  The Veteran is significantly limited by both his PTSD and his physical disabilities involving his feet, hands, and hearing.  The Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity as a result of his angry outbursts and inability to get along with others.  See, e.g., November 2017 VA examination.  In addition, the physical limitations from his residuals of cold injury to his feet and hands limits his ability to perform jobs requiring prolonged standing and ambulation, or tasks requiring repetitive use with his hands, such as writing, or typing.  See, e.g., November 2017 VA examination.  It also prevents him from performing activities requiring being outside in cold weather for a prolonged duration.  Id.  Finally, his hearing loss impacts his ability to perform jobs requiring communication in loud settings or over the phone.  See, e.g., November 2017 VA examination.

In summary, the preponderance of the evidence establishes that for the entire period on appeal, the Veteran, given his occupational history and functional limitations, is unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities.  



ORDER

The claim of entitlement to a rating in excess of 30 percent for cold injury residuals, left foot, is dismissed.

The claim of entitlement to a rating in excess of 30 percent for cold injury residuals, right foot, is dismissed.

The claim of entitlement to a rating in excess of 20 percent for cold injury residuals, left hand, is dismissed.

The claim of entitlement to a rating in excess of 20 percent for cold injury residuals, right hand, is dismissed.

The claim of entitlement to a rating in excess of 50 percent for PTSD is dismissed.

The claim of entitlement to a compensable rating for bilateral hearing loss prior to August 15, 2016, a rating in excess of 10 percent from August 15, 2016, to September 11, 2017, and a rating in excess of 20 percent thereafter, is dismissed.

The claim of entitlement to service connection for a heart condition is dismissed.

The claim of entitlement to service connection for a back disability is dismissed.

The claim of entitlement to service connection for a neck disability is dismissed.

For the entire period on appeal, entitlement to TDIU is granted, subject to the regulations pertaining to the payment of monetary benefits.



____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs