Citation Nr: 19128564 Decision Date: 04/12/19 Archive Date: 04/12/19 DOCKET NO. 15-41 912 DATE: April 12, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted effective November 4, 2012, excluding the period of February 5, 2013 through May 31, 2013 during which the Veteran was awarded a temporary total disability rating. Entitlement to service connection for right hand arthritis is dismissed. Entitlement to service connection for a bilateral leg disability is dismissed. Entitlement to service connection for a bilateral arm disability is dismissed. Entitlement to service connection for a back disability is dismissed. Entitlement to service connection for a bilateral hip disability is dismissed. Entitlement to service connection for a bilateral knee disability is dismissed. Entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for a chest condition is dismissed. Entitlement to service connection for residuals of a traumatic brain injury is dismissed. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the right ankle is dismissed. Entitlement to an initial compensable rating for left foot injury with degenerative joint disease prior to July 28, 2015 is dismissed. Entitlement to an increased rating greater than 20 percent for right foot injury prior to July 28, 2015 is dismissed. Entitlement to an initial rating greater than 30 percent for bilateral pes planus effective July 28, 2015 and thereafter is dismissed Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an effective date prior to March 30, 2010 for the grant of service connection for right ankle degenerative joint disease is dismissed. FINDINGS OF FACT 1. The Veteran’s service connected disabilities, when evaluated in association with his educational attainment and occupational experience, preclude gainful employment. 2. During his March 2019 Board hearing, prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw his appeals for entitlement to service connection for right hand arthritis, bilateral leg disability, bilateral arm disability, back disability, bilateral hip disability, bilateral knee disability, left ankle disability, chest condition, residuals of a traumatic brain injury; entitlement to increased ratings for right ankle degenerative joint disease, left foot injury, right foot injury, bilateral pes planus, PTSD; and entitlement to an effective date prior to March 30, 2010 for the grant of service connection for right ankle degenerative joint disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met since November 4, 2012. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18 (2018). 2. The criteria for withdrawal of an appeal of the issues of entitlement to service connection for right hand arthritis, bilateral leg disability, bilateral arm disability, back disability, bilateral hip disability, bilateral knee disability, left ankle disability, chest condition, residuals of a traumatic brain injury; entitlement to increased ratings for right ankle degenerative joint disease, left foot injury, right foot injury, bilateral pes planus, PTSD; and entitlement to an effective date prior to March 30, 2010 for the grant of service connection for right ankle degenerative joint disease have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 through June 1977 and in May 1992. He had additional National Guard service until his retirement in December 2001 with periods of active duty for training. In March 2019, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing. The transcript from the hearing has not yet been associated with the claims file, as the appeal has been processed under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. During the pendency of his appeal, the Veteran raised the issue of entitlement to a TDIU. When a request for a TDIU is made during the pendency of a claim, whether expressly raised by a Veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the issue of entitlement to a TDIU is before the Board. Although the Veteran submitted his TDIU claim in May 2015, the issue has been pending as part and parcel of the claims for higher ratings on appeal from 2011 rating decisions. As the Board is herein granting entitlement to a TDIU, there is no prejudice in adjudicating TDIU in the first instance. The Veteran was awarded a temporary total disability rating from February 5, 2013 through May 31, 2013 for surgical or other treatment necessitating convalescence for his service-connected right foot injury. As the Veteran was in receipt of a temporary 100 percent disability rating from February 5, 2013 through May 31, 2013, the claim of entitlement to a TDIU during this period is moot. However, the Board will consider whether TDIU was warranted prior to February 5, 2013 as it has remained on appeal since the 2011. Accordingly, the issue of entitlement to a TDIU has been recharacterized as it appears above to exclude the period the Veteran was in receipt of a temporary total disability rating. 1. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) The Veteran claims that his service-connected disabilities make him unable to obtain or maintain substantially gainful employment. VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of his/her service-connected disabilities, from obtaining and maintaining gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must 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) (2017). Although the issue ot entitlement to a TDIU has been part and parcel of the increased rating claims adjudicated in the June 2011 rating decision, he did not meet the schedular eligibility criteria until July 14, 2011, and, as will be discussed further below, he maintained gainful employment until November 3, 2012. Effective July 14, 2011, the Veteran was service connected for PTSD (rated as 70 percent disabling), right foot injury (rated as 20 percent disabling), tinnitus (rated as 10 percent disabling), degenerative joint disease of the right ankle (rated as 10 percent disabling), bilateral hearing loss (rated as noncompensable), and left foot injury with generative joint disease (rated as noncompensable), for a combined disability rating of 90 percent. On his May 2015, the Veteran submitted his Application for Increased Compensation Based on Unemployability. He reported he worked as a mail carrier for the post office from October 1977 through November 3, 2012, when he retired, and that he had completed four years of high school but no further education. The Board notes his Report of Separation and Record of Service reflects he completed high school and two subsequent years of college. Initially, the Board finds that the Veteran maintained substantially gainful employment until November 4, 2012, the day after the date of his retirement. In this case, there is no doubt the Veteran’s long-term employment as a letter carrier qualified as an occupation earning more than marginal income. The Veteran reported on his Application for Increased Compensation Based on Unemployability that his highest wages in one year was over $78,000. His employment with the Post Office was also not a protected environment. On a May 2015 request for employment information signed by his previous employer, it was noted the Veteran received permission to break up his street in half while on a walking route. However, the accommodation is not dispositive evidence the Veteran worked in a protected environment. In a September 2010 letter signed by the Veteran’s coworkers, it was asserted he nearly lost his position as a mail carrier on a walking route because he was unable to maintain the pace required. However, a mounted route opened up and the Veteran successfully bid for, and was awarded, that position. There is nothing in the record reflecting the Veteran was given the mounted route outside of a competitive hiring process or that the Veteran was otherwise unqualified for it. Moreover, the Veteran reported on both his application for unemployability and the request for employment information that he retired from his position on November 3, 2012 not by reason of his disability. Accordingly, the Veteran maintained a substantially gainful employment until November 4, 2012, the day after he retired from the Post Office. See Ray v. Wilkie U.S. App. Vet. Claims. LEXIS 386 No. 17-0781, 1, 26 (Mar 14, 2019). The Board thus turns to the issue of whether the Veteran was unable to obtain and maintain substantially gainful employment effective November 4, 2012. After a full review of the record in conjunction with the applicable laws and regulations, the Board finds that a combination of the Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment effective November 4, 2012. The Veteran has reported credibly and consistently that his bilateral foot and right ankle pain impacted his ability to walk, and negatively affected his performance as a mail carrier. His testimony is corroborated by a September 2010 statement signed by several of his coworkers asserting that the Veteran experienced extreme difficulty completing his tasks as a mail carrier due to the extensive walking involved with that position, which was negatively impacted by his foot and ankle pain. Moreover, the Veteran’s reports of bilateral foot and ankle pain with symptoms of fatigue and difficulty with ambulation are supported by the objective medical evidence of record. The Veteran’s right ankle arthritis, right foot injury, and left foot injury preclude physical or manual labor. Prior to his retirement, the Veteran was afforded a VA examination to evaluate his right ankle and foot disabilities in May 2010. He reported pain, weakness, and lack of endurance to his feet bilaterally. He also described his work duties during a typical eight-hour day: continuous standing and occasional walking and bending. The Veteran reported difficulty walking and climbing impacted his occupation. Physical evaluation reflected pain and weakness on all motions of the feet bilaterally, with edema, instability, and tenderness. The Veteran’s right ankle also demonstrated pain, fatigue, and weakness with abnormal range of motion. The Veteran was afforded a follow-up evaluation in August 2010, and his right ankle manifested as limited range of motion. In October 2012, the Veteran submitted a private Disability Benefits Questionnaire. Although the examination discusses the Veteran’s bilateral pes planus, which the Veteran was not service-connected for until 2015, it does note he experienced weakness in his right ankle. The examiner opined the Veteran was limited with how much walking or standing he could do. Another private Disability Benefits Questionnaire dated September 2013 noted progressive bilateral foot and right ankle pain. A VA treatment record from October 2012, approximately one month before the Veteran stopped working, reflected he experienced severe pain with right ankle inversion and pressure on the plantar heel. He also experienced pain along the attachment of the plantar fascia. A January 2013 treatment record reflected the Veteran’s right ankle had worsened with severe pain on inversion and pressure along the plantar heel, and he was requesting right ankle surgery. In May 2015, he reported right heel pain prevented him from walking and his shoe inserts no longer provided relief. The Veteran was afforded VA examinations in July 2015 to evaluate whether his bilateral foot and right ankle disabilities impacted his ability to work. Despite noting that the Veteran experienced pain accentuated on use of his feet and pain with manipulation, the examiner opined the Veteran’s pain did not cause functional loss and did not impact his ability to work. However, the Board finds this assessment inconsistent with the previous evidence of record, reflecting the Veteran experienced pain with pressure to the heel and with evidence of fatigue and weakness bilaterally. As for the Veteran’s right ankle, the examiner opined that the Veteran would need to take breaks when walking more than 300 yards and he could not stand for more than 10 minutes, but that sedentary activity was not impacted. The Veteran was employed for approximately 35 years as a mail carrier, many of which were spent on walking routes. He has no other occupational experience. His increased bilateral foot and ankle pain, weakness, and fatigability preclude him from obtaining and maintaining employment as a letter carrier or any other position that requires prolonged walking and standing. Accordingly, the Veteran’s bilateral foot disabilities and right ankle disability precluded him from physical labor in light of his occupational experience. Although the July 2015 VA examiner noted the Veteran would be able to obtain and maintain sedentary work, that opinion does not contemplate the impact of his bilateral hearing loss and PTSD. Additionally, it does not consider the fact that the Veteran has no occupational experience in sedentary – or office – employment. The Board finds that the Veteran’s bilateral hearing loss would affect all types of employment. The Veteran was afforded a VA examination to evaluate the functional impact of his bilateral hearing loss in July 2015. He reported difficulty understanding people. Furthermore, his PTSD would likely preclude his ability to maintain sedentary employment in any type of office environment. His concentration and short-term memory were consistently noted to be decreased. He was also noted to experience irritability and anger. The Veteran was afforded a VA examination to evaluate his PTSD in March 2015. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and inability to establish and maintain effective relationships. In October 2015, the Regional Office (RO) requested an addendum opinion to evaluate the functional impact caused by his PTSD. The examiner noted that many of his work problems while at the Post Office were due to his physical disabilities and opined that while his PTSD results in reduced reliability and productivity in his occupational functioning, it did not render him unemployable. The Board finds this opinion less probative than the September 2015 VA examination, which will be discussed below. The October 2015 opinion relies solely on the fact that the Veteran’s physical disabilities impacted his employment as a mail carrier, but did not discuss the Veteran’s ability to perform sedentary employment. The Veteran was afforded a VA examination in September 2015 to evaluate his PTSD. The examiner provided a detailed opinion explaining that the Veteran would struggle to adapt to new employment. The examiner noted the Veteran’s problems with concentrating and memory would give him little motivation to learn something new. Additionally, he experienced conflicts in his last employment that caused him to take time off until he retired, and that he could not comply with the pace of others. Due to his physical disabilities and feeling emotionally overwhelmed, he was not capable of functioning during a 40-hour work week. The examiner also noted he had problems with change, difficulty adjusting, and tended to be impulsive and irritable. He was also anxious, sensitive to many statements, and behaviors from others changed his mood quickly. The examiner also noted the Veteran would struggle to learn new tasks, which would result in difficulty handling time pressures and completing the work. Finally, his thoughts were often racing and he experienced difficulty screening out stimuli. As such, the examiner noted the Veteran experienced functional impairment as a result of his PTSD. The Board finds this assessment of the functional impairment caused by the Veteran’s PTSD to be highly probative, because it details how his PTSD symptoms would impact his ability to perform tasks and interact with coworkers, even in a sedentary environment. Considering the evidence discussed above, the Board finds that a combination of all the Veteran’s service-connected disabilities precluded substantially gainful employment effective November 4, 2012. His bilateral foot and right ankle disabilities limited his ability to walk and stand, precluding physical labor. Additionally, his bilateral hearing loss impacted his ability to communicate with others, and his PTSD caused reduced concentration and memory with increased irritability, which would make learning new tasks and forms of employment difficult and impact his ability to complete tasks in a scheduled time period. The Board finds that the combination of the Veteran’s service-connected physical and mental health disabilities renders him unable to obtain or maintain substantial gainful employment effective November 4, 2012. Dismissed Issues 2. Entitlement to service connection for right hand arthritis is dismissed. 3. Entitlement to service connection for a bilateral leg disability is dismissed. 4. Entitlement to service connection for a bilateral arm disability is dismissed. 5. Entitlement to service connection for a back disability is dismissed. 6. Entitlement to service connection for a bilateral hip disability is dismissed. 7. Entitlement to service connection for a bilateral knee disability is dismissed. 8. Entitlement to service connection for a left ankle disability is dismissed. 9. Entitlement to service connection for a chest condition is dismissed. 10. Entitlement to service connection for residuals of a traumatic brain injury is dismissed. 11. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the right ankle is dismissed. 12. Entitlement to an initial compensable rating for left foot injury with degenerative joint disease prior to July 28, 2015 is dismissed. 13. Entitlement to an increased rating greater than 20 percent for right foot injury prior to July 28, 2015 is dismissed. 14. Entitlement to an initial rating greater than 30 percent for bilateral pes planus effective July 28, 2015 and thereafter is dismissed 15. Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is dismissed. 16. Entitlement to an effective date prior to March 30, 2010 for the grant of service connection for right ankle degenerative joint disease is dismissed. 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, during the March 2019 Board hearing, the Veteran and his representative agreed that there was no need to adjudicate the remaining service connection or increased rating claims if entitlement to a TDIU were granted. Thus, there remains no allegation of errors of fact or law for appellate consideration with regard to those claims. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel