Citation Nr: 18100747 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-32 335A DATE: April 20, 2018 ISSUES DECIDED: 6 ISSUES REMANDED: 0 ORDER Entitlement to service connection for back condition is dismissed. Entitlement to service connection for neuropathy is dismissed. Entitlement to the maximum rating of 40 percent for service-connected residuals, status post stress fracture, right calcaneus, is granted. Entitlement to the maximum rating of 40 percent for service-connected residuals, status post stress fracture, left calcaneus, is granted. Entitlement to Special Monthly Compensation (SMC) based on the loss of use of both feet is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployabilty (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. On August 16, 2017, prior to the promulgation of a decision in the appeal, the Veteran’s attorney requested to withdraw the Veteran’ claims for service connection for back condition and service connection for neuropathy; there is no question of fact or law remaining before the Board in these matters. 2. When considering the functional loss caused by the Veteran’s service-connected residuals, status post stress fracture, right calcaneus, the Veteran’s right foot disability is best characterized as loss of use of the foot. 3. When considering the functional loss caused by the Veteran’s service-connected residuals, status post stress fracture, left calcaneus, the Veteran’s left foot disability is best characterized as loss of use of the foot. 4. The Veteran’s compensable service-connected disabilities have a combined evaluation for compensation of 70 percent or greater, with at least one disability rated at 40 percent or greater. 5. The competent evidence reasonably establishes the Veteran’s service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Regarding the matters of service connection for back condition and service connection for neuropathy, the criteria for withdrawal of an appeal by the appellant are met; the Board has no further jurisdiction in these matters. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for a maximum schedular rating of 40 percent for loss of use of the right foot have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5167, 5284 (2017). 3. The criteria for a maximum schedular rating of 40 percent for loss of use of the left foot have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5167, 5284 (2017). 4. The criteria for an award of SMC under subsection (l) based on loss of use of both feet due to service-connected bilateral feet disabilities have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350 (2017). 5. The schedular requirements for TDIU are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from February 1969 to February 1971. The Veteran requested a hearing before the Board in his September 2014 substantive appeal. In an August 2017 letter, the Veteran stated he would like to withdraw his hearing request. In a September 2017 letter, his attorney confirmed the Veteran wished to withdraw his hearing request. As such, the Veteran’s request for hearing is deemed withdrawn. Regarding the claim for SMC, VA has a well-established duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Under this duty to maximize benefits, SMC are to be accorded when a veteran becomes eligible without need for a separate claim. See Bradley, 22 Vet. App. 280, 294 (2008). Consequently, the Board has jurisdiction over the issue of SMC. Regarding the claim for TDIU, the Veteran submitted an Application for Increased Compensation due to Unemployability in August 2016, which was denied by a February 2018 rating decision. The Court has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Board finds the issue of entitlement to TDIU is properly before the Board by virtue of his increased rating claim, pursuant to Rice. Dismissed Claims The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative/ attorney and must be in writing (except for appeals withdrawn on the record at a hearing). 38 C.F.R. § 20.204(b). On August 16, 2017, prior to the promulgation of a decision in the appeal, the Veteran’s attorney requested to withdraw the Veteran’ claims for service connection for back condition and service connection for neuropathy. Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in these matters, and the appeals are dismissed. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to a rating in excess of 30 percent for service-connected residuals, status post stress fracture, of the right and left calcaneus The Veteran’s attorney contends the medical evidence of record supports the finding that the Veteran’s disability picture best represents a loss of use of both feet. See August 2017 attorney brief. The Veteran’s service-connected right and left feet are each assigned a 30 percent rating under Diagnostic Code 5284 (foot injuries, other). Under DC 5284, a 30 percent evaluation is provided for a “severe” foot injury. The Note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. “Loss of use of a foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the United States Court of Appeals for Veterans Claims (Court) stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. In this case, the Board finds that the maximum schedular rating of 40 percent for each of the Veteran’s feet under Diagnostic Code 5167 for loss of use of the foot is the appropriate rating as the Veteran’s disability more nearly approximates the loss of use of the feet based on functional loss due to pain. An October 2013 VA treatment record stated the Veteran falls if not using a walker or wheelchair due to being off balance due to chronic pain from feet and ankles. An April 2014 VA examination stated the Veteran cannot bear weight on either foot and is confined to a wheelchair and scooter. The examiner stated the Veteran can only take 1 to 2 steps because of pain. In an August 2016 statement, the Veteran reported to maintain any semblance of mobility, he required an electric scooter. He reported he cannot stand more than 30 seconds, and can take no more than a few steps. He reported this makes leaving home difficult. At a February 2018 VA examination, the Veteran reported his bilateral foot pain and stiffness continue to get progressively worse. The examiner noted the Veteran’s constant use of a wheelchair. The Board gives great probative weight to the April 2014 VA examiner opinion that the Veteran cannot bear weight on either foot and is confined to a wheelchair and scooter. This is consistent with the examination findings and observations throughout the record. The Board also gives great probative weight to the lay statements of the Veteran regarding his chronic foot pain, swelling, inability to take more than 1-2 steps, and required use of a wheelchair or electric scooter. The Veteran is competent to report these symptoms and abilities. 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).The Board finds these statements credible, as they are consistent with multiple medical examiner observations and opinions. The Board acknowledges the April 2014 and February 2018 VA examiners indicated the Veteran’s functional impairment of the feet would not be equally served by amputation with prosthesis. However, the responsibility for determining whether there is loss of use rests with adjudicator. VBA Manual M21-1, IV.ii.2.H.1.b. These opinions provided no further rationale and were inconsistent with the severity the examiner’s described in their own reports. In summary, the Board finds the preponderance of the evidence supports the Veteran’s service-connected right foot disability and left foot disability are best characterized as a loss of use of the foot. Consequently, the Board grants an increase to 40 percent for both the Veteran’s right foot and left foot under the criteria governing loss of use. Entitlement to special monthly compensation based on loss of use The Veteran is entitled to Special Monthly Compensation (SMC) because his disability is characterized by loss of use of both feet. SMC will be awarded for the anatomical loss of a foot, or where there is “loss of use” of the foot. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2). In the previous section, the Board found that the Veteran’s disability is best characterized by the rating that encompasses the loss of each foot. Accordingly, the criteria for an award of SMC under subsection (l) based on loss of use of both feet due to service-connected bilateral feet disabilities have been met. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has a service-connected disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to at least 70 percent. As such, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied. The Board finds the preponderance of the evidence supports the Veteran could not perform a job that involved standing or walking due to his service-connected bilateral foot conditions. The question before the Board is whether the Veteran would be precluded from performing sedentary positions when considering solely his service-connected bilateral foot disabilities. Resolving reasonable doubt in the Veteran’s favor, the Board finds the evidence supports the Veteran’s service-connected foot conditions produce pain and discomfort to the extent that would prevent the Veteran from performing even a sedentary position. The Veteran has reported foot/ankle pain, even when at rest. See July 2010, June 2013, January 2018 treatment notes. The Board gives great probative weight to the Veteran’s lay statements regarding pain and discomfort, even when non-weightbearing. The Veteran is competent to report these 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).These statements are credible when looking to the severity of the Veteran’s service-connected foot condition. The Board considered the Veteran’s approval of Social Security disability benefits and June 2013 VA treatment letter stating the Veteran unable to work in any capacity, but did not give these opinions probative weight because the determinations were made considering disabilities beyond the Veteran’s service-connected foot conditions. The Board acknowledges that a February 2018 VA examiner opined the Veteran could perform sedentary work. The medical examiner is competent to opine on the Veteran’s mental abilities, but the question of unemployability is a legal determination. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The Board gives low probative weight to the examiner’s opinion because it lacked rationale or discussion of how pain and discomfort would impact the Veteran’s ability to perform sedentary work. The Board finds the Veteran’s physical limitations, including the consideration of pain, as a result of solely his service-connected disabilities are of sufficient severity to produce unemployability. Given the foregoing body of evidence, the Board resolves all reasonable doubt in the Veteran’s favor and concludes that the evidence supports a finding that his service-connected disabilities preclude him from securing or following substantially gainful employment. Therefore, the criteria for establishing entitlement to TDIU are met. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD TAW, Associate Counsel