Citation Nr: 18149843 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-40 528A DATE: November 14, 2018 ORDER The appeal seeking entitlement to service connection for arthritis of the left hip is dismissed. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted prior to June 20, 2014, and from December 9, 2014, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for coronary artery disease is remanded. FINDINGS OF FACT 1. On June 5, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his counsel, that he wished to withdraw his appeal of entitlement to service connection for arthritis of the left hip. 2. Prior to June 20, 2014, and from December 9, 2014, it reasonably shown by the record that the Veteran was unable to secure or maintain gainful employment as a result of his service-connected disabilities. 3. From June 20, 2014, to December 9, 2014, the Veteran’s service-connected disabilities had a combined rating of 100 percent; he has not asserted and the record does not show that during that time, he had a single disability that, by itself, prevented him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for arthritis of the left hip have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for a TDIU rating (prior to June 20, 2014, and from December 9, 2014) have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1978 to September 1982. In January 2018, the Veteran’s representative submitted a motion to advance this appeal on the Board’s docket. The undersigned is granting the motion and advancing the appeal on the docket based upon severe financial hardship. 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for arthritis of the left hip. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In correspondence received in June 2018, the Veteran’s counsel requested to withdraw the claim for service connection for arthritis of the left hip. Enclosed with his letter was a “Consent to Withdrawal of Claims” signed by the Veteran in May 2018. The Veteran has withdrawn his appeal seeking service connection for arthritis of the left hip and, hence, there remains no allegation of error of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal and it is dismissed. 2. Entitlement to a TDIU rating. With respect to TDIU, VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant’s disabilities must be 70 percent or greater. Id. For the purpose of determining whether the Veteran’s disability ratings constitute a single disability rated 60 percent or multiple disabilities one of which is rated 40 percent or greater, certain disabilities can be combined if, among other possibilities, the disabilities are of one or both upper extremities, or of one or both lower extremities, including the bilateral factor. Id. The Veteran is service-connected for the following disabilities: major depressive disorder (rated 70 percent from April 28, 2014); arthritis of the lumbar spine (rated 20 percent from March 14, 2013, and 40 percent from June 20, 2014); radiculopathy of the left lower femoral nerve (rated 20 percent from March 14, 2013); radiculopathy of the left lower sciatic nerve (rated 40 percent from March 14, 2013, and 20 percent from December 9, 2014); tinnitus (rated 10 percent from March 14, 2013); radiculopathy of the right lower sciatic nerve (rated 10 percent from March 14, 2013); radiculopathy of the right lower femoral nerve (rated 10 percent); painful scar of the left rib area (rated 10 percent from April 23, 2015); bilateral hearing loss (rated 0 percent from March 14, 2013); and a residual scar of the left anxilla overlying the 9th rib area (rated 0 percent from December 5, 2013). As a result of his service-connected disabilities, the Veteran has had the following combined ratings: 80 percent from March 14, 2013; 90 percent from April 28, 2014; 100 percent from June 20, 2014; and 90 percent from December 9, 2014. Based on the foregoing, the Veteran has met the schedular requirements for a TDIU rating throughout the appeal period. However, as the Veteran was already in receipt of a 100 percent combined rating from June 20, 2014, to December 9, 2014, and his claim for TDIU is based on a combination of all his service-connected disabilities, this decision will consider only whether the Veteran warrants a TDIU rating prior to June 20, 2014 and from December 9, 2014. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). The Veteran asserts that since March 24, 2013, his service-connected lumbar spine and bilateral lower extremity disabilities have prevented him from securing any substantially gainful occupation. He also asserts that since April 28, 2014, his service-connected major depressive disorder has, along with his physical disabilities, rendered him unable to secure and maintain any gainful occupation. Resolving any reasonable doubt in the Veteran’s favor, the record supports a finding that his service-connected disabilities have prevented him from being able to secure or maintain substantially gainful employment as of March 14, 2013. During an August 2013 VA back examination, the Veteran reported he had problems getting out of a chair and sleeping at night because of his back pain. He also reported having difficulty getting out of his bed three to four times per week. After repetitive use of the thoracolumbar spine, the examiner noted the Veteran had less movement than normal, weakened movement, excess fatigability, pain on movement, and swelling. It was noted the Veteran had moderate constant pain caused by radiculopathy in the right lower extremity and severe constant pain in the left lower extremity. Severe paresthesias and numbness were also noted on the left. The examiner opined that the Veteran would have difficulty sitting or standing for a prolonged period. The Veteran was examined again for his spine and radiculopathy disabilities in December 2014. At that time, the Veteran reported daily flare ups of moderate severity lasting two hours to one and a half days. He further reported difficulty sleeping because of back pain and nausea with severe pain, and noted that sometimes he could not walk because of the severe pain in his back and legs. After a physical examination of the Veteran, the examiner stated that the Veteran demonstrated minimal range of motion of the spine that was needed for physical work lifting and pulling. The examiner opined that although the Veteran could not do physical hard labor, he could sit at a desk with breaks to get up frequently and do sedentary work. The Veteran’s VA treatment notes confirm that he continued to experience extreme pain and limitations, confirming the permanent nature of his disability. For example, in December 2014, it was noted that the Veteran struggled with chronic pain and that the pain related to his back injury continued to be overwhelming. He walked with a cane for short distances, his gait was slow and measured, and it was noted he clearly had pain when walking. In January 2015 it was noted that everything hurt: walking, sitting, standing, bending, and lying down. Furthermore, the Veteran slept only 30 to 45 minutes at a time. In May 2015, the Veteran applied for specially adapted housing or a special home adaptation grant; he reported he was in a wheelchair most days and used a walker other days. In June 2015, the Veteran reported falling due to his left leg giving out, having difficulty managing stairs, and trouble getting out of bed some days because of pain. In March 2016, the Veteran’s physician who had been treating him since February 2013, indicated in a letter that the Veteran was not able to work because of his low back pain and leg pain. He further opined the Veteran was unemployable due to having to use a rolling walker along with a wheelchair for long distances. He further noted the Veteran’s significant low back and leg pain required him to use narcotics as needed and that his pain prevented him from getting out of bed and he had problems with stairs. In a vocational assessment received in June 2018, submitted by the Veteran and completed by a rehabilitation and vocational counselor/consultant, the counselor opined, based on her review of the claims file, medical records, and interview with the Veteran that his service-connected disabilities, as of March 2013, were of such severity to render him unable to secure and follow substantial gainful employment. She further noted that the Veteran’s major depressive disorder, which was service-connected in April 2014, further strengthened her opinion that the Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. The rationale provided by the vocational consultant is well-supported in her assessment and by the evidence of record, to which she cites. While the record contains opinions from the October 2013 and December 2014 VA examiners indicating that the Veteran’s back condition and associated radiculopathy do not prevent him from performing sedentary work, these opinions do not account for the Veteran’s lay statements, which were not addressed at all by the October 2013 examiner and were noted by the December 2014 examiner, but not addressed in his actual opinion. Notably, the December 2014 examiner also indicated that the examination neither supported nor contradicted the Veteran’s statements describing functional loss during flare-ups, suggesting that his complaints were not inconsistent with the physical findings. Additionally, the VA examiners’ opinions that the Veteran is able to perform sedentary work do not take into consideration the fact that since April 2014, he has also been service-connected for major depressive disorder. The Veteran’s statements concerning the pain and functional limitations associated with his physical disabilities are found to be credible. He is also noted to be rated 70 percent disabling for his major depressive disorder, from April 2014, which recognizes that he is occupationally and socially impaired in most areas due to his mental disability. Therefore, the Board resolves all reasonable doubt in the Veteran’s favor and finds that a TDIU rating is granted prior to June 20, 2014, and from December 9, 2014. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND While the record contains disability benefits questionnaires from February and September 2013 related to ischemic heart disease, neither examiner provided an opinion regarding whether the Veteran’s ischemic heart disease is related to his military service, including any exposure to ionizing radiation, which the Veteran explained during his hearing before the Decision Review Officer in April 2016, he experienced as an atomic demolition specialist. The Veteran’s attorney also argues in his June 2018 correspondence that the Veteran’s coronary artery disease is secondary to his service-connected disabilities. Remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran’s coronary artery disease. The Board acknowledges that the Veteran’s attorney also argues in his June 2018 correspondence that review by an independent cardiologist is required under VA’s duty to assist based on the February 2013 examiner’s notation that there was conflicting data regarding the treatment the Veteran received and his suggestion that an independent cardiologist would need to determine which catheterization was correct. However, the examiner’s suggestion was related to the Veteran’s claim for compensation under 38 U.S.C. § 1151, which was denied in a January 2015 rating decision and is not at issue in the current appeal. The matter is REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of any coronary artery disease and/or ischemic heart disease. The examiner must opine: (a) Whether the Veteran’s claimed disability at least as likely as not (1) began during active service, (2) manifested within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (b) Whether it is at least as likely as not that the Veteran’s claimed disability is related to an in-service injury, event, or disease, including exposure to any type of hazardous material, including ionizing radiation, in the Veteran’s capacity as an atomic demolition specialist, including two incidents in which he was required to clean up a special atomic demolition munition (SADM) after it had split open. (c) Whether it is at least as likely as not that the Veteran’s claimed disability is (1) proximately due to his service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Specifically, the examiner is asked to consider whether the Veteran’s service-connected major depressive disorder and/or his service connected arthritis of the lumbar spine caused the Veteran to use tobacco products after service; if so, whether the use of tobacco products as a result of either of these service-connected disabilities was a substantial factor in causing his coronary artery disease and/or ischemic heart disease; and whether the coronary artery disease and/or ischemic heart disease would not have occurred but for the use of tobacco products caused by the service-connected disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file including a copy of this remand must be made available to and be reviewed by the examiner. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinions sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel