Citation Nr: 20022474 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-56 164 DATE: April 1, 2020 ORDER The claim for a rating in excess of 20 percent for degenerative arthritis of the spine is dismissed The claim for a compensable rating for residuals of an injury of the right fifth finger is dismissed. The claim for a rating in excess of 10 percent for residuals of a rupture of the right Achilles tendon is dismissed. The claim for a compensable disability rating for sinusitis is dismissed. The claim for a rating in excess of 20 percent for degenerative joint disease of the right knee, status post-surgery, is dismissed. The claim for a rating in excess of 10 percent for painful and limited extension of the right knee, status post-surgery, is dismissed. The claim for a rating for a post-operative scar of the right knee associated with degenerative joint disease of the right knee is dismissed. The claim for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is dismissed. The claim for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is dismissed. The claim for an effective date prior to May 27, 2016, for the assignment of a 10 percent disability rating for bilateral peripheral neuropathy of the lower extremities is dismissed. The claim for service connection for dental trauma is dismissed. Service connection for major depressive disorder, to include as secondary to his service-connected disability is granted. A total rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. At the January 2020 Board hearing and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claims for an increased disability rating in excess of 20 percent for degenerative arthritis of the spine; a compensable disability rating for residuals of an injury of the right fifth finger; an rating in excess of 10 percent for residuals of a rupture of the right Achilles tendon; a compensable rating for sinusitis; a rating in excess of 20 percent for degenerative joint disease of the right knee; a rating in excess of 10 percent for painful and limited extension of the right knee; a compensable rating for a scar of the right knee; a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity; a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity; an effective date prior to May 27, 2016, for the assignment of a 10 percent disability rating for bilateral peripheral neuropathy of the lower extremities; and service connection for dental trauma. 2. The Veteran’s major depressive disorder was caused by his service-connected disabilities. 3. The evidence of record demonstrates that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for a rating in excess of 20 percent for degenerative arthritis of the spine have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the claim for a compensable rating for residuals of an injury of the right fifth finger have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the claim for a rating in excess of 10 percent for residuals of a rupture of the right Achilles tendon have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the claim for a compensable rating for sinusitis have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of an increased disability rating in excess of 20 percent for a right knee disability have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 6. The criteria for withdrawal of the claim for a compensable disability rating for sinusitis have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 7. The criteria for withdrawal of the claim for a rating in excess of 10 percent for painful and limited extension of the right knee have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 8. The criteria for withdrawal of the claim for a compensable rating for a scar of the right knee have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 9. The criteria for withdrawal of the claim for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 10. The criteria for withdrawal of the claim for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 11. The criteria for withdrawal of the claim for an effective date prior to May 27, 2016, for the assignment of a 10 percent disability rating for bilateral peripheral neuropathy of the lower extremities have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 12. The criteria for withdrawal of the claim for service connection for dental trauma have been met. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. 13. The criteria for service connection for major depressive disorder, to include as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 14. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from November 1972 to April 1976 and from August 1981 to October 1987. In January 2020, the Veteran underwent a Board hearing before the undersigned Veterans Law Judge. A transcript has been obtained and associated with the claims file. Withdrawn Issues 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. § 20.205. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, at his January 2020 Board hearing, the Veteran expressly withdrew his appeal of the claims for a rating in excess of 20 percent for degenerative arthritis of the spine; a compensable rating for residuals of an injury of the right fifth finger; a rating in excess of 10 percent for residuals of a rupture of the right Achilles tendon; a compensable disability rating for sinusitis; a rating in excess of 20 percent for degenerative joint disease of the right knee; a rating in excess of 10 percent for painful and limited extension of the right knee; a compensable rating for a scar of the right knee; a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity; a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity; an effective date prior to May 27, 2016, for the assignment of a 10 percent disability rating for bilateral peripheral neuropathy of the lower extremities; and service connection for dental trauma. No allegations of errors of fact or law for appellate consideration with respect to these specific matters were raised. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and are, therefore, dismissed. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. The Veteran testified at this Board hearing that his major depressive disorder is secondary to the pain resulting from his service-connected disabilities. According to an October 2012 DeKalb Community Service Board, Clinical Report, the Veteran stated he became depressed in approximately 2011-2012 due to old military injuries on the right knee and Achilles degenerative joint disease, eye pain, and a scar. The Board notes that the Veteran has been service-connected for these disabilities. He was subsequently diagnosed with major depressive disorder at the VA medical facility. The VA treatment records confirm that the Veteran was diagnosed with depressive disorder due to general medical condition. The objective medical record does not indicate evidence contrary to the findings above. As such, the criteria for service connection for major depressive disorder have been met on a secondary basis and the Veteran’s claim is granted. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Veteran was previously denied TDIU as it was determined he did not meet the schedular rating criteria. While he had a combined rating of 70 percent from May 27, 2016, he did not have a single disability ratable at 40 percent of more. However, from May 27, 2016, his degenerative arthritis of the spine, left lower extremity peripheral neuropathy, and right lower extremity peripheral neuropathy, as they are considered a single disability, combine for a 40 percent rating. As such, the Veteran meets the schedular rating criteria for a TDIU as of May 27, 2016. The Veteran’s compensable service-connected disabilities are degenerative arthritis of the spine; residuals of a right eye burn; residuals of an injury of the right fifth finger; residuals of a rupture of the right Achilles tendon; sinusitis; degenerative joint disease of the right knee; painful flexion of the right knee; painful and limited extension of the right knee, status post-surgery; a post-operative scar of the right knee associated with degenerative joint disease of the right knee; peripheral neuropathy of the left lower extremity; and peripheral neuropathy of the right lower extremity. According to a December 2019 report from a private vocational expert, upon review of the evidence of record and an interview with the Veteran, it was opined that “it is more likely than not that [the Veteran] has been unable to secure and follow substantially gainful employment due to his service-connected back, bilateral knee, right Achilles tendon, and residual right eye burn conditions since at least October 2011 and continuing to the present. During this time period, [the Veteran’s] medical record, as well as his self-report, depicts symptoms incongruent with the requirements of competitive employment.” The vocational expert stated this opinion was “rendered despite any medical professionals’ opinions that [the Veteran] could have engaged in work activity with the limitations arising from his service-connected conditions.” Furthermore, it was opined that the Veteran’s service-connected conditions rendered him unable to perform even sedentary unskilled work, as he did not obtain skills from his past employment as an examination proctor that would readily transfer to sedentary employment. (Continued on the next page)   The Board finds that overall, the evidence tends to show that the Veteran would not be able to obtain or retain employment consistent with any past employment or education, as a result of the functional limitations caused by his service-connected disabilities. Accordingly, resolving doubt in the Veteran’s favor, a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.