Citation Nr: 18148511 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-27 470 DATE: November 7, 2018 ORDER A total rating based upon individual unemployability (TDIU) due to service-connected disability is granted. The issue of entitlement to service connection for arthritis is dismissed. The issue of entitlement to service connection for calcium deposits is dismissed. The issue of entitlement to service connection for fibromyalgia is dismissed. The issue of entitlement to service connection for a low back disorder is dismissed. The issue of entitlement to service connection for a neck disorder is dismissed. The issue of entitlement to service connection for a bilateral hip disorder is dismissed. The issue of entitlement to service connection for a right knee disorder is dismissed. The issue of entitlement to service connection for neurologic impairment of the left lower extremity is dismissed. The issue of entitlement to service connection for a dental disorder for compensation purposes is dismissed. FINDINGS OF FACT 1. The Veteran is service connected for major depressive and generalized anxiety disorder, currently evaluated as 50 percent disabling; bilateral plantar fasciitis, currently evaluated as 50 percent disabling; hypertensive heart disease, currently evaluated as 40 percent disabling; instability of the left knee, currently rated as 20 percent disabling; limitation of motion of the left knee, currently evaluated as 10 percent disabling; as well as hypertension, left knee scar, and left little finger fracture which are all evaluated as noncompensable (zero percent). His overall combined rating was 70 percent from May 26, 2009; and has been 90 percent since December 24, 2014. 2. The competent and credible evidence of record reflects it is at least as likely as not the Veteran’s service-connected disabilities preclude him from obtaining and/or maintaining substantially gainful employment that is consistent with his education and work history. 3. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested regarding his appellate claims of entitlement to service connection for arthritis, calcium deposits, fibromyalgia, low back disorder, neck disorder, bilateral hip disorder, right knee disorder, neurologic impairment of the left lower extremity, and a dental disorder for compensation purposes. CONCLUSIONS OF LAW 1. The criteria for assignment of a TDIU due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.7, 4.16. 2. The criteria for withdrawal of the appellate claim of entitlement to service connection for arthritis, calcium deposits, fibromyalgia, low back disorder, neck disorder, bilateral hip disorder, right knee disorder, neurologic impairment of the left lower extremity, and a dental disorder for compensation purposes have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1973 to November 1976, and the United States Air Force from February 1979 to July 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in April 2018. A transcript of that hearing is of record. The Board notes that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). However, in dental claims, the RO adjudicates the claim of service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As this matter stems from an adverse RO determination, the appeal is limited to the issue of entitlement to service connection for a dental disorder for compensation purposes. Moreover, the record reflects the RO referred the dental claim to the pertinent VAMC to consider the Veteran’s entitlement to dental treatment. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). 1. The issue of entitlement to a TDIU due to service-connected disability It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). Here, the Veteran is service connected for major depressive and generalized anxiety disorder, currently evaluated as 50 percent disabling; bilateral plantar fasciitis, currently evaluated as 50 percent disabling; hypertensive heart disease, currently evaluated as 40 percent disabling; instability of the left knee, currently rated as 20 percent disabling; limitation of motion of the left knee, currently evaluated as 10 percent disabling; as well as hypertension, left knee scar, and left little finger fracture which are all evaluated as noncompensable. His overall combined rating was 70 percent from May 26, 2009; and has been 90 percent since December 24, 2014. Therefore, he satisfies the schedular criteria for consideration of a TDIU. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Here, the record reflects the Veteran has a college education. The record also reflects he has had various jobs since his separation from service, although his primary occupation appears to have been that of a social worker. He last worked in this, or any substantially gainful capacity, in 2008. The Board notes, however, that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Similarly, the record reflects the Veteran was found to be entitled to disability benefits from the Social Security Administration (SSA) due to the combination of his service-connected and nonservice-connected disabilities. The impairment attributable to nonservice-connected disabilities is not for consideration in determining entitlement to a TDIU for VA purposes. Id. The Board does note the Veteran has contended, to include at his April 2018 hearing, that he cannot engage in the typical employment activities as a social worker, and provider examples thereof. The Board finds his testimony on this matter to be competent and credible. The Board also notes the competent medical evidence reflects the Veteran has significant impairment in engaging in physical activities of employment due to his service-connected disabilities. For example, a July 2017 VA examination reflects the Veteran experiences impairment such as dyspnea due to his service-connected hypertensive heart disease at 5 to 7 METs, and it was noted this was consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). His overall physical impairment is even more significant when taking into account his left knee and bilateral plantar fasciitis. As such, it would appear his service-connected disabilities would preclude most occupations of a physical nature. The Board further notes that his service-connected major depressive and generalized anxiety disorder would cause significant impairment in the type of activities consistent with his past work as a social worker. In pertinent part, a November 2017 VA examination noted this disability was manifested by symptoms such as difficulty in establishing and maintaining effective work and social relationships; as well as difficulty in adapting to stressful circumstances, including work or a work-like setting. In view of the foregoing, it appears the Veteran is capable of no more than marginal employment that is consistent with his education and work history. However, under the law marginal employment does not constitute substantially gainful employment. 38 C.F.R. § 4.16(a). Further, the law mandates resolving all reasonable doubt in favor of the Veteran, to include degree of disability. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. For these reasons, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran’s service-connected disabilities preclude him from obtaining and/or maintaining substantially gainful employment that is consistent with his education and work history. Therefore, a TDIU is warranted. 2. The issue of entitlement to service connection for arthritis 3. The issue of entitlement to service connection for calcium deposits 4. The issue of entitlement to service connection for fibromyalgia 5. The issue of service connection for a low back disorder 6. The issue of entitlement to service connection for a neck disorder 7. The issue of entitlement to service connection for a bilateral hip disorder 8. The issue of entitlement to service connection for a right knee disorder 9. The issue of entitlement to service connection for neurologic impairment of the left lower extremity 10. The issue of entitlement to service connection for a dental disorder for compensation purposes 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. 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. In this case, the Veteran testified at his April 2018 that the award of a TDIU would satisfy his entire appeal; and that, if the TDIU were granted, he would withdraw his claims of service connection that were currently on appeal. Transcript p. 2. For the reasons detailed above, the Board has determined a TDIU is warranted in this case. Therefore, in light of the Veteran’s hearing testimony, the Board finds he has withdrawn his appeal regarding the claims of service connection for arthritis, calcium deposits, fibromyalgia, low back disorder, neck disorder, bilateral hip disorder, right knee disorder, neurologic impairment of the left lower extremity, and a dental disorder for compensation purposes. Further, his withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal decision must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Consequently, there remain no allegations of errors of fact or law for appellate consideration with respect to these claims. The Board thus does not have jurisdiction to review these appellate claims, and they are dismissed. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel