Citation Nr: 18147476 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 08-07 008 DATE: November 6, 2018 ORDER Entitlement to an increased rating in excess of 40 percent for lumbar disability is dismissed. Entitlement to a total disability rating by reason of individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU on an extraschedular basis for the period prior to April 21, 2016, is remanded. FINDINGS OF FACT 1. In December 2017, the Veteran indicated that he wished to withdraw his claim of increased compensation in excess of 40 percent for lumbar disability. 2. As of April 21, 2016, the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to increased compensation for lumbar disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. As of April 21, 2016, the criteria for a TDIU on schedular basis have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran’s claims was subsequently transferred to the RO in Waco, Texas. This matter was remanded by the Board in March 2011 and August 2017 for additional development. Such development has been completed and the matters returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). In December 2010, the Veteran appeared with his then-representative for a videoconference hearing before Veterans Law Judge (VLJ) D. Wight. A transcript of that proceeding has been associated with the record. The testimony provided touched on the merits of the Veteran’s pending claim. Subsequently, in December 2017, the Veteran appeared with his representative for a videoconference hearing before VLJ T. O’Shay. A transcript of that proceeding has also been associated with the record. At that time, the Veteran and his representative were notified of his right to an additional hearing before a third VLJ who will be assigned to the panel to decide his appeal. See 38 U.S.C. §§ 7102(a), 7107(c) (2012); 38 C.F.R. §§ 19.3, 20.707 (2018). In response, the Veteran expressly indicated he wished to waive his right and proceed without an additional hearing. 1. Entitlement to an increased rating in excess of 40 percent for lumbar disability Legal Principles A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. A withdrawal may also be initiated by the Veteran’s authorized representative. Where, as here, an appeal withdrawal is received after the case has been transferred to the Board, the withdrawal does not become effective until the issue is dismissed by the Board. Id. § 20.204(b)(3). Discussion In December 2017, the Veteran appeared with his representative for a videoconference hearing before the undersigned. At that time, the Veteran, through his representative, expressed his desire to withdraw his pending appeal for entitlement to increased compensation for lumbar disability on the record. The Board finds that the Veteran’s withdrawal of his claim was explicit, unambiguous, and done with a full understanding of the consequences of such action on part of the Veteran. See Acree v. O’Rourke, 891 F.3d 1009, 1012-1013 (2018). Accordingly, the claim of entitlement to increased compensation in excess of 40 percent for lumbar disability is dismissed. 2. Entitlement to TDIU on a schedular basis Legal Principles Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be 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 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; rather, the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Further, the question is not whether the Veteran can find employment, but “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2 (2013).”). Discussion The Veteran has been granted service connection for residuals of fractures of the L2, L3, and L4 with traumatic arthritis (rated as 30 percent prior to April 21, 2016, and 40 percent therefrom); right lower extremity radiculopathy (rated as noncompensable from December 18, 2000, increased to 10 percent from October 17, 2001, and increased to 20 percent from April 21, 2016); left lower extremity radiculopathy (rated as noncompensable from December 18, 2000, increased to 10 percent from October 17, 2001, and increased to 20 percent from April 21, 2016); residuals of stab wound (rated as noncompensable from October 4, 1973); and pseudofolliculitis barbae (rated as noncompensable from December 14, 2010). Disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25. Using this table, the Veteran’s combined rating for service-connected disabilities is noncompensable prior to October 15, 1984, is 30 percent prior to October 17, 2001, is 50 percent prior to April 21, 2016, and 60 percent therefrom. As indicated above, disabilities resulting from common etiology will be considered as one disability for purposes the minimal criteria for TDIU. Given the common etiology of the Veteran’s lumbar disability and bilateral radiculopathy, they are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25 and account for one disability ratable at 60 percent, i.e., satisfying the threshold schedular criteria for an award of TDIU benefits, as of April 21, 2016. After a thorough review of the record, the Board finds that an award of TDIU benefits is warranted in this case as of April 21, 2016. In making this finding, the Board has considered the Veteran’s service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. In this case, the Board notes that the report of the April 2016 VA lumbar examination reflects, in pertinent part, the Veteran’s statements regarding persistent low back pain radiating down the bilateral lower extremities, which is exacerbated by bending, lifting, standing, or walking. Physical examination revealed significantly decreased range of motion of the lumbar spine and the presence of muscle spasms resulting in abnormal gait. The examiner opined that the Veteran is precluded from employment physical in nature due to his physical limitations. This is consistent with the evidence of record, which is replete with references to the Veteran’s physical limitations and diminished capacity to engage in physical activity as a result of, in part, his service-connected disabilities. The Veteran’s civilian occupational history consisted of primarily labor-intensive jobs, i.e., construction. The April 2016 VA examiner further opined that the Veteran is “able to engage in sedentary [] employment.” No further opinion or rationale was provided. Of course, context is key. To that extent, the Board notes that the Veteran has obtained an Associate Degree, which would suggest he possesses the basic competencies necessary to perform sedentary employment. Neither the Veteran nor his representative has asserted that he does not possess the basic competencies to perform sedentary employment. Rather, the Veteran has consistently indicated that he is precluded from securing and following a substantially gainful occupation physical and psychological limitations imposed by his service-connected disabilities. For instance, Social Security Administration (SSA) records dated in December 2007 reflect the Veteran is limited to standing 15-30 minutes before experiencing dizziness and numbness in his bilateral lower extremities. At his December 2010 hearing, the Veteran indicated that he experiences “severe pain throughout the day” due to his lumbar disability, which is exacerbated by prolonged sitting or standing. At that time, the Veteran described the pain level as overwhelmingly 7 or 8 on a scale of 1-10. Medical treatment records dated in March 2015 reflect a history of chronic lumbar pain exacerbated by prolonged sitting or lying down. At that time, the Veteran indicated the severity of his pain negatively affects, in pertinent part, his physical activity, his ability to sleep, and his ability to concentrate. The severity of the Veteran’s pain, his inability to sit and/or stand for longer than 30 minutes, and the cognitive impact of his disability, i.e., difficulty sleeping with related fatigue and difficulty concentrating, undoubtedly would have some occupational impact. Given all the circumstances, the Board finds it unlikely that the Veteran is capable of performing the physical and mental acts required by even sedentary employment. As such, the Board finds that the veteran is not capable of performing the physical and mental acts required by employment due to his service-connected disabilities, and thus, an award of TDIU since April 21, 2016, is warranted REASONS FOR REMAND 3. Entitlement to TDIU on an extraschedular basis As a preliminary matter, the Board notes that the facts set forth above are incorporated by reference herein. As indicated, the Veteran does not meet the minimal schedular criteria for TDIU prior to April 21, 2016. However, where, as here, a veteran is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in §4.16(a), the rating authority is directed to refer the matter to the Director of the Compensation Services for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). The Veteran filed a claim of entitlement to a TDIU in August 2006. Given the above determination that the Veteran is, in fact, unemployable due to his service-connected disabilities, the Board finds that referral for extraschedular consideration for the period prior to April 21, 2016, is warranted.   The matters are REMANDED for the following action: 1. Refer the matter of TDIU prior to April 21, 2016, to the appropriate department officials for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. Thereafter, readjudicate the issue on appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel