Citation Nr: 18129018 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-16 824 DATE: August 23, 2018 ORDER The claim of entitlement to an additional temporary total disability rating based on a surgical procedure requiring convalescence of 30 days or more for a service-connected disability is dismissed. The claim of entitlement to service connection for bipolar disorder is dismissed. New and material evidence has been received, the claim of service connection for migraines is reopened and, to that extent only, the appeal is granted. Entitlement to a total disability rating based on individual unemployability is granted. ISSUES REMANDED Entitlement to service connection for a disability manifested by foot pain and cramps is remanded. Entitlement to service connection for headaches, to include as due to the Veteran's service-connected back disorder or posttraumatic stress disorder, or as due to a neck disorder is remanded. Entitlement to service connection for carpel tunnel syndrome is remanded. FINDINGS OF FACT 1. The Veteran indicated that he wished to withdraw his appeal on the issue of entitlement to an additional temporary total disability rating based on a surgical procedure requiring convalescence of 30 days or more for a service-connected disability at his April 2018 Board hearing. 2. The Veteran indicated that he wished to withdraw his appeal of the issue of entitlement to service connection for bipolar disorder at his April 2018 Board hearing. 3. In a November 1994 rating decision, the RO denied the claim of service connection for headaches. 4. Evidence received since the November 1994 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for entitlement to service connection for headaches. 5. The Veteran’s service connected disabilities are of such a nature as to cause him to be unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appeal on the issue of entitlement to an additional temporary total rating for a surgical procedure requiring convalescence of 30 days or more for a service-connected disability are met. 38 U.S.C. §§ 5103 (a), 5103A, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (b), (c) (2017). 2. The criteria for withdrawal of the Veteran’s appeal on the issue of entitlement to service connection for bipolar disorder are met. 38 U.S.C. §§ 5103 (a), 5103A, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (b), (c) (2017). 3. The unappealed November 1994 rating decision which denied service connection for headaches is final. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (a), 3.104(a), 20.302, 20.1103 (2017). 4. Evidence received since the November 1994 RO decision that denied entitlement to service connection for headaches is new and material; the claim is reopened. 38 U.S.C. § 1154 (a), 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.302, 20.1103 (2017). 5. The criteria for TDIU have been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1982, from June 1983 to October 1983, and from February 1984 to November 1984. The issues were last remanded by the Board in December 2015 in order to afford the Veteran a videoconference hearing. The Veteran testified before the undersigned at an April 2018 videoconference hearing. A transcript of that hearing is of record. Additionally, at that hearing, the Veteran waived RO review of any additional evidence and the record was held open for sixty days to allow the Veteran to submit additional evidence. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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. See 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative, must be in writing or on the record at a hearing, and must specify that the appeal is withdrawn in its entirety or list the issues that the veteran wishes to withdraw from the appeal. See id. During his April 2018 hearing before the undersigned, the Veteran indicated that he wished to withdraw his appeal of the issues of entitlement to an additional temporary total disability rating based on a surgical procedure requiring convalescence of 30 days or more for a service-connected disability, and service connection for bipolar disorder. Thus, there remains no allegation of error of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. See 38 C.F.R. § 20.204. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Additionally, the evidence necessary to meet the criteria of raising a reasonable possibility of substantiating the claim should be interpreted as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim of service connection for headaches was previously denied in a November 1994 rating decision. At the time of that decision, the evidence of record included service treatment records, a September 1994 VA examination report, the transcript of a July 1994 RO hearing and VA treatment records. In the November 1994 rating decision, service connection was denied because the RO found that there was no relationship between the Veteran’s headaches and his service. Since that time, additional statements in support of the claim, treatment records and the Veteran’s April 2018 Board hearing testimony have been added to the record. Additionally, and significantly, added to the claims file in October 2005 was a report from private physician Dr. P.N. in which he noted that the Veteran’s headaches and blackouts were due to his “various traumas” and noted the Veteran’s in-service car accident. The October 2005 findings are new and pertain to the basis for the previous denial of service connection. As such, new and material evidence has been received and the claim of service connection for headaches is reopened. TDIU Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the appeals period, the Veteran has been service connected for multiple disabilities: PTSD (rated as 70 percent disabling effective January 3, 2006, degenerative joint disease of the lumbar spine (rated as 40 percent disabling effective January 22, 2015) and nasal deviation of the septum with allergic rhinitis (rated as noncompensable). The central inquiry in a veteran's claim for TDIU is "whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Initially, the Veteran is shown to have an associate’s degree as an electronics technician, he describes his past job history to include work as a temporary employee in a warehouse and as a telecommunication technician which required lifting heavy items. He has reported having last worked in 2007 when he was laid off. The Veteran described having to lift heavy objects in his last jobs and has reported difficulty concentrating and controlling his short temper as obstacles in maintaining work. Regarding the Veteran’s deviation of the septum with allergic rhinitis, a May 2010 examination report includes the Veteran’s reports of constant sinus problems. The examiner stated that the effect on his occupation was to avoid triggers or allergens. In a July 2017 examination, following examination, the examiner found that the Veteran’s nasal deviation with allergic rhinitis status post septoplasty did not impact his ability to work. The Board finds, however, that the Veteran’s lumbar spine disability and, primarily, his PTSD render him unable to maintain gainful employment. In so finding, the Board notes a May 2010 statement from Dr. Z.S which states that the Veteran was not able to work in any capacity now and for the long term due in part to chronic low back pain. Further, in a September 2012 decision, the Social Security Administration determined that the Veteran was disabled since February 18, 2010 due to post traumatic stress disorder, bipolar disorder, carpal tunnel syndrome, degenerative disc disease of the cervical and lumbar spines, hip injury, sleep apnea, hypertension and diabetes mellitus. A July 2017 VA examination of the spine included a diagnosis of degenerative arthritis of the spine, the Veteran was found to have decreased range of motion, it was noted that he did not require assistive devices. The examiner stated that the Veteran had degenerative joint disease of the lumbar spine which was symptomatic, but the examiner stated that the Veteran’s condition did not impact his ability to work. A July 2017 VA examination, the examiner found that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. The Veteran reported during that examination that had problems due to his physical and mental capabilities, he described having a temper and problems concentrating. The examiner concluded that the Veteran’s temper, concentration, depression, anger, insomnia, paranoia and frequent hospitalizations significantly impaired his ability to function in an occupational environment. After considering the evidence of record, with specific attention to the documents discussed above, the Board finds that entitlement to TDIU is warranted. Specifically, the Board notes that the Veteran’s education and past work history involve physical labor and the Veteran is shown to be unable to endure the stressors of regular work. While the Veteran is shown to have additional non-service connected disabilities which may impair his ability to work, as well as impairments due to substance abuse, affording the Veteran the benefit of the doubt, the service-connected disabilities rendered him unable to secure and maintain substantially gainful employment for the time period in question. 38 U.S.C. § 4.16. REMAND Service Connection for a disability manifested by foot pain and cramps During his April 2018 Board hearing, the Veteran asserted that he believed his feet were changed during the course of service due to marching, that he has experienced foot pain since service and that his claimed foot condition may be related to his service-connected lumbar spine disability. In August 2012, the Veteran was afforded a VA examination in which the VA examiner concluded that the Veteran did not have a right foot condition. However, as the Veteran has indicated that he has experienced foot pain since service, it may be found that the pain reaches the level of functional impairment of earling capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Further, since that time, the Veteran has been diagnosed with osteomyleitis, and while it is unclear whether this diagnosis is related to service, such a finding must be made by a medical professional. As such, a new VA examination is in order. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) Entitlement to service connection for headaches, to include as due to the Veteran's service-connected lumbar spine disability or posttraumatic stress disorder, or as due to a neck disorder In December 2017, the Board remanded the issue of entitlement to service connection for a neck disability for a new VA medical opinion. The Veteran asserts, in part, that his headaches are related to his neck disorder. Because a decision on that issue could significantly impact a decision on the issue of entitlement to service connection for headaches, the issues are inextricably intertwined and consideration of that issue must be defferred pending the resolution of the service connection for a neck disability claim. See generally Harris v. Derwinski, 1 Vet. App. 180 (1991). Entitlement to service connection for carpel tunnel syndrome During his April 2018 Board hearing, the Veteran reported that as an avionics technician, he had to use his hands often and lift heavy objects during service. He stated that he had hand pain while in service and believed that his carpal tunnel was related to his service. As no opinion has been rendered regarding this assertion, a VA examination should be scheduled. The matters are REMANDED for the following action: 1. Ask any and all potentially appropriate federal records custodians to provide any and all medical records related to the Veteran’s foot and carpal tunnel disabilities. If no additional records can be obtained, the Veteran and his representative should be notified in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. Thereafter, provide the Veteran with an appropriate VA examination of claimed foot disability. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s foot disability began during or is related to the Veteran’s active duty service, or whether it is at least as likely as not that a foot disability is due to or was aggravated (beyond its natural progression) by his service-connected lumbar spine disorder. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of carpal tunnel syndrome in the right and/or left wrists. The examiner must offer an opinion whether it is at least as likely as not (50 percent or greater probability) related to the Veteran’s active duty service. 4. The examiners should provide a statement of the reasons or rationale for any opinions offered. The examiners must provide all findings, along with a complete rationale for his or her opinion(s) in the examination reports. If any of the above requested   opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Slovick, Counsel