Citation Nr: 20021753 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-05 901 DATE: March 26, 2020 ORDER Entitlement to a rating more than 10 percent for bilateral plantar fascitis/pes planus for the period prior to June 8, 2016 and in excess of 50 percent thereafter is dismissed. Entitlement to a rating more than 20 percent for mechanical back syndrome with mild degenerative changes for the period prior to March 26, 2019 and in excess of 40 percent thereafter is dismissed. Entitlement to a compensable rating for gastroesophageal reflux disease for the period prior to June 8, 2016 and in excess of 10 percent thereafter is dismissed. Entitlement to a rating more than 10 percent for prurigo nodularis is dismissed. Entitlement to an effective date earlier than June 19, 2009 for the increase to 10 percent for service-connected hemorrhoids is dismissed. Entitlement to service connection for an acquired psychiatric disorder is dismissed. Entitlement to service connection for osteopenia of the left hip is dismissed. Entitlement to service connection for a right shoulder disorder is dismissed. Entitlement to service connection for sties is dismissed. Entitlement to service connection for dizziness is dismissed. Entitlement to service connection for circulation and pre-diabetes problems is dismissed. Entitlement to service connection for joint problems is dismissed. Entitlement to service connection for a left knee disorder is dismissed. Entitlement to service connection for a cervical spine disorder is dismissed. Entitlement to service connection for a right knee disorder is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. At the January 2020 Board hearing, and in correspondence submitted thereafter, the Veteran, through his representative, requested to withdraw the issues of entitlement to increased ratings for bilateral plantar fascitis/pes planus, mechanical back syndrome with mild degenerative changes, gastroesophageal reflux disease, and prurigo nodularis, entitlement to an effective date earlier than June 19, 2009 for the increase to 10 percent for service-connected hemorrhoids, as well as the issues of entitlement to service connection for a right shoulder disorder, sties, dizziness, circulation and pre-diabetes problems, joint problems, a left knee disorder, a cervical spine disorder, and a right knee disorder. He is represented and is presumed aware of the outcome of the decision to withdraw the claim with respect to these issues. 2. The Veteran’s service-connected disabilities currently meet the percentage requirements for the award of a TDIU, and the evidence demonstrates that he is as likely as not unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to dismiss the issue of entitlement to a rating more than 10 percent for bilateral plantar fascitis/pes planus for the period prior to June 8, 2016 and in excess of 50 percent thereafter have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 2. The criteria to dismiss the issue of entitlement to a rating more than 20 percent for mechanical back syndrome with mild degenerative changes for the period prior to March 26, 2019 and in excess of 40 percent thereafter have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria to dismiss the issue of entitlement to a compensable rating for gastroesophageal reflux disease for the period prior to June 8, 2016 and in excess of 10 percent thereafter have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria to dismiss the issue of entitlement to a rating more than 10 percent for prurigo nodularis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria to dismiss the issue of entitlement to an effective date earlier than June 19, 2009 for the increase to 10 percent for service-connected hemorrhoids have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria to dismiss the issue of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria to dismiss the issue of entitlement to service connection for osteopenia of the left hip have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria to dismiss the issue of entitlement to service connection for a right shoulder disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria to dismiss the issue of entitlement to service connection for sties have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 10. The criteria to dismiss the issue of entitlement to service connection for dizziness have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 11. The criteria to dismiss the issue of entitlement to service connection for circulation and pre-diabetes problems have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 12. The criteria to dismiss the issue of entitlement to service connection for joint problems have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 13. The criteria to dismiss the issue of entitlement to service connection for a left knee disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 14. The criteria to dismiss the issue of entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 15. The criteria to dismiss the issue of entitlement to service connection for a right knee disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 16. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1975 to October 1979, from October 1980 to September 1981, and from February 1987 to September 2002. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to a rating more than 10 percent for bilateral plantar fascitis/pes planus for the period prior to June 8, 2016 and in excess of 50 percent thereafter 2. Entitlement to a rating more than 20 percent for mechanical back syndrome with mild degenerative changes for the period prior to March 26, 2019 and in excess of 40 percent thereafter 3. Entitlement to a compensable rating for gastroesophageal reflux disease for the period prior to June 8, 2016 and in excess of 10 percent thereafter 4. Entitlement to a rating more than 10 percent for prurigo nodularis 5. Entitlement to an effective date earlier than June 19, 2009 for the increase to 10 percent for service-connected hemorrhoids 6. Entitlement to service connection for an acquired psychiatric disorder 7. Entitlement to service connection for osteopenia of the left hip 8. Entitlement to service connection for a right shoulder disorder 9. Entitlement to service connection for sties 10. Entitlement to service connection for dizziness 11. Entitlement to service connection for circulation and pre-diabetes problems 12. Entitlement to service connection for joint problems 13. Entitlement to service connection for a left knee disorder 14. Entitlement to service connection for a cervical spine disorder 15. Entitlement to service connection for a right knee disorder Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2019). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In the present case, at the January 2020 Board hearing, and in correspondence submitted thereafter, the Veteran, through his representative, requested to withdraw the issues of entitlement to increased ratings for bilateral plantar fascitis/pes planus, mechanical back syndrome with mild degenerative changes, gastroesophageal reflux disease, and prurigo nodularis, entitlement to an effective date earlier than June 19, 2009 for the increase to 10 percent for service-connected hemorrhoids, as well as the issues of entitlement to service connection for a right shoulder disorder, sties, dizziness, circulation and pre-diabetes problems, joint problems, a left knee disorder, a cervical spine disorder, and a right knee disorder. As he is represented and they reached the decision jointly, he is presumed to be aware of the effects of this action, and the matter was discussed at the hearing. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are hereby dismissed. 16. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, 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). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Service connection is currently in effect for the following disabilities: bilateral plantar fascitis/pes planus (50 percent); sleep apnea (50 percent); mechanical back syndrome with mild degenerative changes (40 percent); asthma (30 percent); left shoulder tendonitis (20 percent); tinnitus (10 percent); maxillary sinusitis (10 percent); prurigo nodularis (10 percent); hemorrhoids (10 percent); gastroesophageal reflux disease (10 percent); hearing loss, left ear (noncompensable); excision of nasal polyps (noncompensable); and migraine headaches (noncompensable). Thus, the Veteran currently meets the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) as his total evaluation is 90 percent. What remains to be determined is whether the Veteran’s service-connected disabilities render him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). According to the Veteran’s January 2018 VA Form 21-8940, the Veteran reported that he last worked for the Department of Defense as a civilian within the Communications Security Logistics Activity (CSLA) from December 2004 to April 2015. The Veteran also reported that he had two years of college education. He included the following remarks: Due to my severe pain in my feet, back, and joints, I am unable to sit, stand, or walk for any length of time any longer. I have to constantly move or my joints will ache, feet will shoot pain but I have to get up and move to prevent my back from the shooting continuous pain. I am unable to sit longer than 15-20 minutes without moving. The Veteran also submitted a statement in January 2018 that discussed his prior job and requirement to deploy if needed. He stated that his back and feet impacted his ability to lift heavy loads or walk long distances. He also discussed how his asthma impacts his ability to breathe. The Board observes that CSLA responded to a request for employment information in February 2018. CSLA noted that the Veteran’s employment ended on April 2, 2015. It was noted that he worked as a logistics management specialist in an office setting with the potential to travel up to 50 percent, including overseas. It was stated that he worked an 8 to 9-hour day and 40 hour work week. CSLA also noted that the Veteran was authorized sick leave to attend VA medical appointments. CSLA indicated the reason for the termination of employment was that the Veteran retired. The Board acknowledges that the Veteran attended several VA examinations over the course of this appeal. For example, a March 2019 examiner noted that the Veteran’s back disorder highly limits him from physical labor due to constraints on his ability to do arduous/unlimited work or moderate to strenuous work involving running, carrying, climbing, or lifting greater than 10 pounds. The examiner noted there were no limitations on his ability to work in a sedentary occupation with the ability to change position as needed. The examiner indicated that the Veteran’s bilateral foot disorder does not impact his ability to work. Additionally, an April 2019 examiner indicated that the Veteran’s left shoulder tendonitis causes no functional impact on his ability to perform any type of occupational task. Finally, a September 2019 examiner stated that the Veteran’s sleep apnea impacts his ability to work in that he should avoid jobs that require flying or driving. The Board also acknowledges earlier examinations dated from as early as 2012 which apparently show that the Veteran’s service-connected disabilities do cause some functional impact on his ability to work. For instance, a November 2012 examiner stated that the Veteran’s asthma limits his employment for tasks that requiring prolonged or brisk walking. Also, a June 2016 examiner stated that the Veteran’s back disorder and bilateral foot disorder cause him to be unable to ambulate more than two blocks, and that he is unable to sit or stand for periods longer than 15 minutes without extreme pain. In January 2020, the Veteran testified that he last worked in 2015 and was forced to retire due mainly to his many orthopedic-type service-connected disabilities. The Veteran indicated that when he retired in 2015, his service-connected back disorder, bilateral foot disorder, and migraine headaches were bothering him the most. The Veteran explained that he is very limited as to carrying or lifting objects and struggles to do basic daily chores such as yardwork or driving. He and his spouse also explained that the Veteran’s service-connected sleep apnea causes him to be easily fatigued. Furthermore, the Veteran claimed that he cannot sit still for long periods of time due to pain in his extremities, cannot ambulate well, suffers from extreme pain in his neck and back, and has frequent heartburn. He also claimed that he attends VA therapy, which sometimes helps his conditions, and takes a variety of prescription and over the counter medication. Considering the above, the Board finds that it is at least as likely as not that the cumulative effects of the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Thus, the Board finds that the evidence of record reasonably supports the grant of TDIU. Given the Veteran’s limited occupational experience, along with the evidence discussed in the pertinent VA examinations, his treatment records, his statements regarding employment, and January 2020 testimony, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran’s service-connected disabilities render him unemployable under the applicable regulations. Further, no VA examiner has commented specifically on the Veteran’s employability when considering the Veteran’s overall disability picture. Given the overall physical assessments, as well as the evidence discussed herein, the evidence seems evenly balanced. As the reasonable doubt created by this approximate balance of the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.