Citation Nr: 18156503 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-44 040 DATE: December 11, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for subacromial bursitis is dismissed. Entitlement to an increased rating in excess of 10 percent for cervical spondylosis is dismissed. Entitlement to an increased rating in excess of 20 percent for lumbar spondylosis and DDD is dismissed. Entitlement to service connection for a right ankle condition is dismissed. Entitlement to an increased rating in excess of 10 percent for tinnitus is dismissed. Entitlement to service connection for residuals of deviated septum (also claimed as sinus surgery, crushed sinus cavity, and pain on sneezing) is dismissed. Entitlement to service connection for an upper respiratory condition is dismissed. Entitlement to service connection for kidney stones is dismissed. Entitlement to an increased rating in excess of 20 percent for right cervical radiculitis and carpal tunnel syndrome (claimed as numbness, right hand) is dismissed. Entitlement to an increased rating in excess of 10 percent for right lumbar radiculitis is dismissed. Entitlement to an increased rating in excess of 70 percent for PTSD with depressive disorder, not otherwise specified (also claimed as sleep disorder) is dismissed. Entitlement to special monthly compensation based on aid and attendance and housebound criteria is dismissed. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted from July 26, 2012. FINDINGS OF FACT 1. In May 2016 correspondence, prior to the promulgation of a decision by the Board, the Veteran withdrew the appeals as to the issues of entitlement to an increased rating for subacromial bursitis; entitlement to an increased rating for cervical spondylosis; entitlement to an increased rating for lumbar spondylosis and DDD; entitlement to service connection for a right ankle condition; entitlement to an increased rating for tinnitus; entitlement to service connection for residuals of deviated septum (also claimed as sinus surgery, crushed sinus cavity, and pain on sneezing); entitlement to service connection for an upper respiratory condition; entitlement to service connection for kidney stones; entitlement to an increased rating in excess of 20 percent for right cervical radiculitis and carpal tunnel syndrome; entitlement to an increased rating in excess of 10 percent for right lumbar radiculitis; entitlement to an increased rating in excess of 70 percent for PTSD with depressive disorder, not otherwise specified; and entitlement to special monthly compensation based on aid and attendance and housebound criteria. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding the issues of entitlement to an increased rating for subacromial bursitis; entitlement to an increased rating for cervical spondylosis; entitlement to an increased rating for lumbar spondylosis and DDD; entitlement to service connection for a right ankle condition; entitlement to an increased rating for tinnitus; entitlement to service connection for residuals of deviated septum (also claimed as sinus surgery, crushed sinus cavity, and pain on sneezing); entitlement to service connection for an upper respiratory condition; entitlement to service connection for kidney stones; entitlement to an increased rating in excess of 20 percent for right cervical radiculitis and carpal tunnel syndrome; entitlement to an increased rating in excess of 10 percent for right lumbar radiculitis; entitlement to an increased rating in excess of 70 percent for PTSD with depressive disorder, not otherwise specified; and entitlement to special monthly compensation based on aid and attendance and housebound criteria have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria are met for a TDIU from July 26, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2008 to August 2010. I. Withdrawn Issues Entitlement to an increased rating in excess of 10 percent for subacromial bursitis Entitlement to an increased rating in excess of 10 percent for cervical spondylosis Entitlement to an increased rating in excess of 20 percent for lumbar spondylosis and DDD Entitlement to service connection for a right ankle condition Entitlement to an increased rating in excess of 10 percent for tinnitus Entitlement to service connection for residuals of deviated septum (also claimed as sinus surgery, crushed sinus cavity, and pain on sneezing) Entitlement to service connection for an upper respiratory condition Entitlement to service connection for kidney stones Entitlement to an increased rating in excess of 20 percent for right cervical radiculitis and carpal tunnel syndrome (claimed as numbness, right hand) Entitlement to an increased rating in excess of 10 percent for right lumbar radiculitis Entitlement to an increased rating in excess of 70 percent for PTSD with depressive disorder, not otherwise specified (also claimed as sleep disorder) Entitlement to special monthly compensation based on aid and attendance and housebound criteria Generally, the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement in writing, a statement of the case, and a timely substantive appeal. 38 U.S.C. § 7105, 38 C.F.R. § 20.200. A September 2011 rating decision denied claims for of entitlement to an increased rating for subacromial bursitis; entitlement to an increased rating for cervical spondylosis; entitlement to an increased rating for lumbar spondylosis and DDD; entitlement to service connection for a right ankle condition; entitlement to an increased rating for tinnitus; entitlement to service connection for residuals of deviated septum (also claimed as sinus surgery, crushed sinus cavity, and pain on sneezing); entitlement to service connection for an upper respiratory condition; entitlement to service connection for kidney stones; entitlement to an increased rating in excess of 20 percent for right cervical radiculitis and carpal tunnel syndrome; entitlement to an increased rating in excess of 10 percent for right lumbar radiculitis; entitlement to an increased rating in excess of 70 percent for PTSD with depressive disorder, not otherwise specified; and entitlement to special monthly compensation based on aid and attendance and housebound criteria have been met. The Veteran timely appealed the September 2011 rating decision. A Statement of the Case was issued in October 2015. In correspondence received in May 2016 and November 2018, the Veteran’s attorney indicated that the Veteran wishes to withdraw all of the claims listed in the Statement of the Case, with the exception of entitlement to TDIU. As the Veteran has withdrawn the appeals on these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed without prejudice. 38 U.S.C. § 7104. II. TDIU A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). In Cantrell, the Court held that the term "protected environment" was ambiguous and noted that VA had declined to define the term. The Court went on to say that it could not uphold the Board's reasons and bases for saying full time employment as a park ranger was not sheltered employment absent a definition of that term adopted by VA. In that case, there were reports that accommodations had been made in the Veteran's employment to account for his disabilities. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Service connection is in effect for PTSD (70 percent); lumbar spondylosis and degenerative disc disease (20 percent); right cervical radiculitis and carpal tunnel syndrome (20 percent); subacromial bursitis (10 percent); cervical spondylosis (10 percent); right lumbar radiculitis (10 percent); and tinnitus (10 percent). The schedular requirements for TDIU have been met since August 5, 2010. A claim for service connection for multiple disabilities was received in September 2010. The claim was denied in a September 2011 rating decision. In a September 2012 claim to reopen, the Veteran indicated that he was unable to work due to his service-connected disabilities. A September 2013 rating decision granted service connection for PTSD, a lumbar spine disability, right cervical radiculitis and carpal tunnel syndrome, cervical spondylosis, subacromial bursitis, tinnitus, and right lumbar radiculitis. The September 2013 rating decision denied entitlement to TDIU. The Veteran’s September 2012 claim raised a claim for TDIU, as he indicated that his disabilities rendered him unemployable. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a formal claim for TDIU that was received in January 2013, the Veteran reported that he last worked on July 25, 2012, when he was terminated from his employment at a casino. He reported that he had a monthly income of $2,500 for the period from September 2010 to July 2012. A May 2017 brief from the Veteran’s representative indicates that the Veteran was employed as a security guard and a table busser after service, with his last employment in July 2012. The Veteran’s representative asserted that the Veteran’s employment since August 5, 2010 was marginal. The brief indicated that the Veteran has a high school education and additional training as an EMT. Social Security records dated in February 2013 reflect that the Veteran reported that he could not work at all due to pain. The Veteran reported that he could not move without pain and could not even write because of pain in his shoulder. In July 2013, a physician who examined the Veteran’s lumbar spine opined that the Veteran is unable to work in activities requiring prolonged standing and ambulation or prolonged sitting. The Veteran had a VA examination for PTSD in July 2013. The examiner opined that the Veteran would have difficulty working, given his problems. The examiner opined that the Veteran’s symptoms included “difficulty in adapting to stressful circumstances, including work or a work-like setting.” The examiner opined that the Veteran is not totally unemployable but may be able to do work from home or in an environment where he does not have to interact with many people under stress. In May 2017, the Veteran submitted a private vocational assessment. Based on a review of the Veteran’s claims file, the vocational specialist opined that the Veteran’s psychiatric condition, alone, would preclude him from securing, following, or maintaining any substantially gainful occupation within the general labor market. The evidence shows that the Veteran would be unable to maintain substantially gainful employment, both physical and sedentary. The July 2013 lumbar spine examination establishes that the Veteran’s lumbar spine disability precludes him from doing any work that requires physical exertion. The July 2013 VA psychiatric opinion shows that the Veteran would be limited to work in a protected work environment, which is not considered substantially gainful employment. The Veteran was last gainfully employed on July 25, 2012. The Veteran’s representative asserts that a TDIU is warranted from August 5, 2010 because the Veteran’s employment from 2010 to 2012 was marginal. The income level established by the U.S. Department of Commerce as the poverty threshold for one person in 2010 was $11,139. It was $11,484 in 2011 and $11,720 in 2012. The Veteran’s reported income of $2,500 per month from September 2010 to July 2012 exceeded the U.S. poverty threshold. He was employed in a casino at that time, which would not be considered a protected work environment. Thus, the Board finds that the Veteran’s employment between August 5, 2010 and July 25, 2012 did not constitute marginal employment in a protected environment. Accordingly, the Board finds that entitlement to a TDIU is warranted from July 26, 2012, the day after he last worked. The Board has considered the benefit-of-the-doubt rule in making this decision. 38 U.S.C. § 5107 (b). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski