Citation Nr: 1809049 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 04-23 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for left lower extremity sciatica. 4. Entitlement to service connection for ulnar nerve disorder. 5. Entitlement to service connection for right ear hearing loss. 6. Entitlement to an initial rating in excess of 30 percent for depression. 7. Entitlement to an initial rating in excess of 10 percent for left varicocele. 8. Entitlement to an initial rating in excess of 20 percent right lower extremity muscle atrophy and sciatica. 9. Entitlement to a rating in excess of 40 percent for low back pain syndrome with grade 1, L5-S1 spondylolisthesis. 10. Entitlement to an effective date earlier than February 7, 2012 for service connection for right lower extremity muscle atrophy and sciatica. 11. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1976 to July 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A prior hearing in June 2010 was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In October 2017, a video conference hearing was held before the undersigned VLJ. These matters were previously before the Board in February 2011. The February 2011 Board remand included the matter of entitlement to service connection for tinnitus. A June 2012 rating, in part, granted service connection for tinnitus. Accordingly, the matter is no longer before the Board. At the October 2017 hearing, the Veteran testified that if he were awarded TDIU effective the last date of employment (i.e., November 1, 2009), all of his claims would be satisfied and he would withdraw all other claims before the Board. Inasmuch as the below decision grants entitlement to TDIU effective from November 1, 2009, the remaining issues before the Board will be dismissed in accordance with the Veteran's testimony. FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, pending the award of TDIU effective from November 1, 2009, the Veteran withdrew his appeal of the issues of entitlement to service connection for a cervical spine disorder, headaches, left lower extremity sciatica, ulnar nerve disorder, right ear hearing loss; increased ratings for depression, left varicocele, right lower extremity muscle atrophy and sciatica, low back pain syndrome with grade 1, L5-S1 spondylolisthesis, and; an earlier effective date for service connection for right lower extremity muscle atrophy and sciatica. 2. Effective November 1, 2009, it is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for a cervical spine disorder, headaches, left lower extremity sciatica, ulnar nerve disorder, right ear hearing loss; increased ratings for depression, left varicocele, right lower extremity muscle atrophy and sciatica, low back pain syndrome with grade 1, L5-S1 spondylolisthesis, and; an earlier effective date for service connection for right lower extremity muscle atrophy and sciatica, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Effective November 1, 2009, the criteria for a grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to TDIU The Veteran contends that he is entitled to TDIU effective from November 1, 2009 (i.e., the date after his last day of employment) based on his service-connected disabilities. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). A total disability rating 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 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). 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 one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. 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, 168 (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 degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities are low back syndrome with grade 1, L5-S1 spondylolisthesis, depression, right lower extremity muscle atrophy and sciatica, tinnitus, and left varicocele, for a combined 70 percent rating. Further, because his service-connected low back pain syndrome, depression, and right lower extremity muscle atrophy and sciatica share a common etiology, he satisfies the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a), even prior to be awarding service connection for right lower extremity muscle atrophy and sciatica (i.e., February 7, 2012) What remains to be determined is whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Inasmuch as the pertinent period under consideration in this case is prior to the Veteran being awarded service connection for right lower extremity muscle atrophy and sciatica, such disability will not be considered below in awarding TDIU effective from November 1, 2009. The evidence shows that the Veteran's occupational history includes working as a deputy sheriff, and working with the United States Postal Service as a mail carrier and mail handler. See, e.g., January 1987 VA examination report; November 2010 Social Security Administration (SSA) Vocational Analysis letter. His educational background includes being a high school graduate. See August 1993 VA treatment record. The Veteran has been reportedly too disabled to work since November 1, 2009. See SSA Form 3369. The pertinent evidence of record includes a July 2005 United States Postal Service (USPS) letter noting the Veteran has used 29 days of unscheduled leave in the past year, and another 20 days of annual leave without pay to stay out of disciplinary action. He had been on a light duty status and been unable to perform all duties as a mail handler. A December 2006 USPS letter noted the Veteran performs a light duty job. It was further stated he had been on light duty status and had not been able to perform all his duties as a mail handler. He uses annual leave, sick leave, and leave without pay. It was stated the USPS cannot count on the Veteran at any time because of his attendance. On May 2007 VA mental disorders examination, the Veteran reported he often explodes at work, and intermittently threatens or is verbally aggressive with co-workers. In a November 2010 SSA Vocational Analysis letter, it stated that a September 2010 functional capacity examination revealed the Veteran has the residual functional capacity to lift 10 pounds frequently, and 20 pounds occasionally. The Veteran can stand, walk, and sit for about 6 hours in an 8 hour work day. He can occasionally crawl, but can never climb a ladder, rope, or scaffolds. It was indicated the Veteran maintains the mental capacity to perform simple and mildly complex tasks of a repetitive nature in a work setting where social exchanges are brief and superficial, changes are infrequent, and there are no strict production quotas or tasks with rapid pace. It was noted the Veteran's duties as a mail handler including unloading trailers of mail containers, moving mail carts back to operational areas, and setting up machines for the evening shift. He also lifted mail from carts to carrier areas, which required lifting up to 70 pounds. He handled/grasped large objects 3 hours per day. He has been on day shift the last 2 and a half years with the USPS, which involves lighter work, such as cleaning up previous shifts, emptying equipment, and setting up next shifts machines for operation. He was also allowed to use a forklift to unload/move items while on day shift. The Veteran indicated that working the evening and night shifts involved heavier mail handling duties. It was found that the Veteran was precluded from performing his past relevant work as it exceeds the exertional and/or handling limitations of his residual functional capacity as well as the limitations of his mental residual functional capacity (limited to simple repetitive tasks, which is equivalent to unskilled work). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment effective from November 1, 2009. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Board finds significant that the Veteran's employment history was almost exclusively as a mail handler with the USPS which includes physically strenuous labor, work which he was only able to do on a light duty status since approximately March 2000. See March 2000 VA spine examination. Moreover, the evidence shows that prior to the Veteran's retirement on October 31, 2009, he missed a significant portion of time from work, at least in part due to his service-connected low back disability. The evidence also shows conflict with co-workers prior to his retirement. Given the evidence regarding the severity of the Veteran's service-connected disabilities, particularly prior to his retirement, and opinions and evidence indicating the Veteran's functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU rating, effective from November 1, 2009. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Withdrawal of Claims The Board may dismiss any appeal that 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. Id. Here, the Veteran has withdrawn his appeal of the issue of entitlement to service connection for a cervical spine disorder, headaches, left lower extremity sciatica, ulnar nerve disorder, right ear hearing loss; increased ratings for depression, left varicocele, right lower extremity muscle atrophy and sciatica, low back pain syndrome with grade 1, L5-S1 spondylolisthesis, and; an earlier effective date for service connection for right lower extremity muscle atrophy and sciatica, at his October 2017 video conference hearing if he were awarded TDIU effective the last date of employment. Inasmuch as the above decision awards TDIU effective from November 1, 2009, the day after his last date of employment, thereby fully satisfying the Veteran's claim, there remain no allegations of errors of fact or law for appellate consideration as to the remaining issues on appeal. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed. ORDER The appeal of the issues of entitlement to service connection for a cervical spine disorder, headaches, left lower extremity sciatica, ulnar nerve disorder, right ear hearing loss; increased ratings for depression, left varicocele, right lower extremity muscle atrophy and sciatica, low back pain syndrome with grade 1, L5-S1 spondylolisthesis, and; an earlier effective date for service connection for right lower extremity muscle atrophy and sciatica, are dismissed. Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual employability due to service-connected disabilities is granted effective November 1, 2009. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs