Citation Nr: 18140254 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-22 304 DATE: October 2, 2018 ORDER The appeal for the issue of entitlement to an evaluation higher than 20 percent from November 29, 2011, and higher than 30 percent from April 30, 2015, for degenerative disc disease and arthritis of the cervical spine is dismissed. The appeal for the issue of entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy is dismissed. The appeal for the issue of entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 10, 2015, is granted. FINDINGS OF FACT 1. In June 2016, prior to promulgation of a decision in the appeal, the Board received a statement from the Veteran’s representative withdrawing his appeal for entitlement to a higher evaluation for degenerative disc disease and arthritis of the cervical spine. 2. In June 2016, prior to promulgation of a decision in the appeal, the Board received a statement from the Veteran’s representative withdrawing his appeal for entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy. 3. In June 2016, prior to promulgation of a decision in the appeal, the Board received a statement from the Veteran’s representative withdrawing his appeal for entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy. 4. Prior to November 10, 2015, it is reasonably shown that the Veteran’s service connected conditions preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to an evaluation higher than 20 percent from November 29, 2011, and higher than 30 percent from April 30, 2015, for degenerative disc disease and arthritis of the cervical spine 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 on the issue of entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy 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 an appeal on the issue of entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. Prior to November 10, 2015, the criteria for entitlement to TDIU are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1972 to October 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013, rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). Withdrawal of Claims for Increased Rating 1. Entitlement to an evaluation higher than 20 percent from November 29, 2011, and higher than 30 percent from April 30, 2015, for degenerative disc disease and arthritis of the cervical spine 2. Entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy 3. Entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran’s authorized representative has withdrawn the Veteran’s appeal on the issue of entitlement to an evaluation higher than 20 percent from November 29, 2011, and higher than 30 percent from April 30, 2015, for degenerative disc disease and arthritis of the cervical spine, entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy, and entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy, hence there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. Entitlement to a TDIU The Veteran seeks a total disability rating based on individual unemployability—prior to November 10, 2015. He asserts he has been unable to work due to his service-connected disabilities. TDIU is 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 as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. On November 29, 2011, the Veteran filed a claim for an increased evaluation for his service-connected cervical spine condition. In May 2013, and again in July 2013, the RO granted an increase to 20 percent, with notice mailed in July 2013. In June 2014, the Veteran filed a Notice of Disagreement. In February 2015, the Veteran submitted a statement, asserting that the RO failed to consider that his cervical spine condition has led to his being unemployable. In February 2015, the Veteran’s representative submitted a statement attesting that due to the severity of the cervical spine condition, the Veteran has been unable to secure employment. He has therefore raised a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Service connection is in effect for degenerative arthritis of the thoracolumbar spine with a 20 percent evaluation from November 29, 2011, and 40 percent from September 1, 2015, for right knee strain limitation of flexion and extension with a 10 percent evaluation from November 29, 2011, and 40 percent from November 10, 2015, for left sciatic nerve radiculopathy with a 10 percent evaluation from July 8, 2014, 20 percent since January 21, 2015, and 40 percent from November 10, 2015, for degenerative disc disease and arthritis of the cervical spine with a 10 percent evaluation from February 2, 2006, 20 percent evaluation from November 29, 2011, and 30 percent from April 30, 2015, for left knee strain instability with a 30 percent evaluation from November 10, 2015, for left knee strain limitation of flexion and extension with a 10 percent evaluation from November 29, 2011 and 30 percent from November 10, 2015, for left femoral nerve radiculopathy with a 30 percent evaluation from November 10, 2015, for right knee strain instability with a 20 percent evaluation from December 2, 2014, for right sciatic nerve radiculopathy with a 10 percent evaluation from July 8, 2014, and 20 percent evaluation from January 21, 2015, for left upper extremity radiculopathy with a 20 percent evaluation from February 10, 2015, and right upper extremity radiculopathy with a 20 percent evaluation from February 10, 2015, for right femoral nerve radiculopathy with a 20 percent evaluation from November 10, 2015, fracture left pubic rami limitation of adduction with a 10 percent from November 29, 2011, fracture left pubic rami limitation of extension and limitation of flexion with noncompensable evaluations from November 29, 2011, and a noncompensable evaluation for bilateral hearing loss from November 29, 2011. The Veteran is in receipt of a 60 percent evaluation from November 29, 2011, 70 percent from July 8, 2014, 80 percent from January 21, 2015, 90 percent from February 10, 2015, and 100 percent from November 10, 2015. By way of background, the Veteran was injured severely during service in a motorcycle accident. This accident has served as the basis for the award of each of the Veteran’s service connected conditions, except his bilateral hearing loss. As the Veteran is in receipt of a 60 percent evaluation from November 29, 2011, because of a common etiology, the conditions that led to the 60 percent evaluation are considered a single disability. For the entire period on appeal, the Veteran meets the percentage requirements for TDIU. 38 C.F.R. § 4.16(a). On the February 2015, VA Form 21-8940, the Veteran stated he last worked for Graham Construction, in 2010. Social Security Administration (SSA) records indicate the Veteran has been in receipt of disability benefits since July 2013, because of his osteoarthrosis and allied disorders, with the secondary diagnosis being disorders of the back. A medical record from Columbia Medical Associates, from September 2012, indicates the Veteran last worked in 2010 as a carpenter. The Veteran had developed progressively worsening arthritis pain in his knees, low back, and neck, to the point he could no longer function and was forced to stop working. At the September 2012 neck examination, it was noted the impact of the cervical spine condition on his ability to work was he would be unable to stand or sit for more than 3 hours at a time due to pain. At the April 2015, neck examination, the functional impact his neck condition had on his employment, was he is unable to move his neck in all planes. He would have difficulty with working at a desk or computer as he would need to look up and down, which would exacerbate his neck condition. A September 2015, back DBQ was completed, and indicates the Veteran was not able to stand or sit for more than 30 minutes without experiencing increased pain. He was unable to walk for more than 400 feet without pain increasing. In a September 2015, statement, the Veteran indicated he stopped working construction in 2010, as he was not able to perform even light lifting. He then tried to work as a substitute bus driver, that lasted for approximately a year, as he had to quit because of the extreme pain. He then tried to work as a home inspector but had not made any money. An independent medical examination was conducted in September 2015. The examiner indicated the Veteran’s cervical spine condition impact on employment was he was unable to move his neck. He had difficulty working at a desk or computer. The examiner concluded, that from an orthopedic standpoint, it is at least as likely as not that the Veteran has been totally precluded from securing and following substantially gainful employment of all types due to his service-connected cervical spine, bilateral upper extremity radiculopathy, since his last full-time employment in 2010. The examiner explained the Veteran had also been employed as a laborer of some kind. He typically had to carry construction material, and after he was promoted to a crew chief, his lumbar and cervical symptoms continue to gradually escalate despite the fact that he no longer was involved in heavy lifting. A vocational assessment was done in December 2016. The examiner concluded the Veteran could not have done sedentary level work in November 2011, or at any time thereafter. He could not maintain substantially gainful employment because of his service-connected conditions. Further, in November 2011, the Veteran suffered from service-connected impairments of his body which were sufficient to render it impossible for the average person to follow a substantially gainful occupation. There is persuasive evidence that shows that due to the Veteran’s service connected conditions, he was unable to secure and follow a substantially gainful occupation prior to November 10, 2015. Whether TDIU is warranted is a legal determination, not a medical one. There is ample competent and credible evidence showing that the Veteran was unemployable due to his service-connected disabilities prior to November 10, 2015. The Board will allow the RO to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). Special Considerations Effective November 10, 2015, the Veteran is in receipt of a 100 percent schedular rating. As stated above, because the service connected conditions giving rise to the 100 percent rating are of a common etiology, they are considered a single disability. The claim of entitlement to a total disability based on individual unemployability has been rendered moot by the award of a 100 percent schedular evaluation effective November 10, 2015. See Bradley v. Peake, 22 Vet. App. 280 (2008). The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In the case at hand, there is no allegation or evidence that TDIU may be awarded independently of the Veteran’s disabilities of a common etiology. The Veteran, in addition to now being service-connected for orthopedic and neurological conditions, with a combined evaluation of 100 percent, is also service-connected for bilateral hearing loss with a noncompensable evaluation. The Veteran has not argued, and no evidence indicates, that the service-connected disability of bilateral hearing loss has prevented the Veteran from securing or following a substantially gainful occupation within the meaning of 38 C.F.R. § 4.16 (2017). Accordingly, there is no question or controversy for consideration by the Board with regard to TDIU effective November 10, 2015. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel