Citation Nr: 21063005
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 17-23 189
DATE: October 12, 2021

ORDER

The issues of entitlement to increased ratings for nephropathy, bilateral hearing loss, vascular disease of the left leg, coronary artery disease, diabetes mellitus, degenerative joint disease of the right knee, left ankle strain, stress fracture of the right foot, and an earlier effective date claim for vascular disease of the left leg, are dismissed without prejudice.  

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 16, 2013. is granted.

REMANDED

The issue of entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder is remanded.  

FINDINGS OF FACT

1. In a February 2021 Board hearing, the Veteran testified that he wished to withdraw his increased rating claims for nephropathy, bilateral hearing loss, vascular disease of the left leg, coronary artery disease, diabetes mellitus, degenerative joint disease of the right knee, left ankle strain, stress fracture of the right foot, and an earlier effective date claim for vascular disease of the left leg; the Veteran's request to withdraw was made with a full understanding of the consequences of such a withdrawal.

2. Prior to April 16, 2013, the Veteran is unable to obtain or retain substantially gainful employment due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for dismissal for the increased rating claims for nephropathy, bilateral hearing loss, vascular disease of the left leg, coronary artery disease, diabetes mellitus, degenerative joint disease of the right knee, left ankle strain, stress fracture of the right foot, and an earlier effective date claim for vascular disease of the left leg have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 16, 2013 have been met. 38U.S.C.§§1155, 5103, 5103A, 5107(b); 38 C.F.R.§§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Marine Corps from March 1971 to March 1973.

The Veteran testified at a February 2021 videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript is of record.

Withdrawal of Claims

A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 19.55. When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55.

1. Entitlement to increased ratings for nephropathy, bilateral hearing loss, vascular disease of the left leg, coronary artery disease, diabetes mellitus, degenerative joint disease of the right knee, left ankle strain, stress fracture of the right foot, and an earlier effective date claim for vascular disease of the left leg.  

Here, at his February 2021 hearing, the Veteran knowingly testified that he wished to withdraw his claims seeking entitlement to increased ratings for nephropathy, bilateral hearing loss, vascular disease of the left leg, coronary artery disease, diabetes mellitus, degenerative joint disease of the right knee, left ankle strain, stress fracture of the right foot, and an earlier effective date claim for vascular disease of the left leg

The Veterans Law Judge presiding over his hearing explained the consequences of withdrawal, and the Veteran indicated that he understood such consequences. In view of the Veteran's expressed desire, the Board concludes that his intent was to withdraw these claims and further action concerning these claims is not appropriate.  Accordingly, the Board no longer has jurisdiction over these claims, and they are dismissed without prejudice

TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or 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. 38 C.F.R. § 4.16 a ). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. 

If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).

In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b).

2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 16, 2013.

The Veteran contends that he is entitled to a total disability rating. Specifically, he asserts that his service-connected disabilities render him unable to obtain substantially gainful employment. 

In the present case, the Veteran is service connected for coronary artery disease (60 percent from February 11, 2008), Neuropathy (30 percent from August 26, 2010), Vascular disease of the left leg (20 percent from February 11, 2008 and 40 percent from August 26, 2010), peripheral vascular disease right lower extremity (20 percent from February 11, 2008 and 40 percent from August 26, 2010) diabetes mellitus, type II (20 percent from February 11, 2008), Status post fracture of the left leg (10 percent from February 11, 2008), left ankle strain (10 percent from February 11, 2008 to June 5, 2013), degenerative joint disease, right knee (10 percent from February 15, 2010), tinnitus (10 percent from August 26, 2010), and bilateral hearing loss (0 percent from June 3, 2005). Therefore, the Veteran's combined total rating is 80 percent from February 11, 2008. Based on these combined totals, the Veteran meets the schedular criteria for a TDIU from February 11, 2008 onwards.

After a review of the competent evidence of record, the Board determines that TDIU is warranted.

In this case, the medical evidence, in conjunction with the Veteran's credible statements, sufficiently demonstrates that he is unable to obtain and retain substantial gainful employment. As a preliminary matter, the Board notes that after service, the Veteran worked as an instructor for a truck driving school and a truck driver until 2008. 

In making this determination, the Board places significant probative value on the Veterans VA examinations conducted from 2008 and 2011. The records show that the Veterans left knee disability cause the inability to stand, walk, and sit for prolonged periods of time. The records further show that the Veterans heart condition had a severe impact on physical activities as he was unable to walk, climb, or lift.  

Further, the Veteran submitted a private medical opinion in August 2020. The examiner opined that the Veteran has been unable to function in the workplace since at least November 15, 2010. In support of this opinion, the private physician cited to the Veterans November 15, 2010 examination where the treating physician stated that the effect of the condition on the Veterans usual occupation is to avoid strenuous activities. In addition, the private physician noted that the osteoarthritis in the Veterans knees prevented him from sitting, standing, or walking, for extended periods, which prevented him from performing sedentary employment. Further, the private physician noted that the potential for full recovery to ideal health is improbable and his health status will continue to worsen.

The evidence reflects that the Veteran's service-connected disorders affects his ability to even sit, which puts the likelihood of obtaining sedentary gainful employment in serious question. 

Based on the foregoing, the Board finds that the Veteran is not physically able to obtain or maintain substantially gainful employment to include physical or sedentary employment due to his service-connected disabilities. Accordingly, entitlement to TDIU is granted prior to April 16, 2013. 

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD. 

Regarding the Veteran's claim for service connection for an acquired psychiatric disorder, a remand for further development is necessary.

Specifically, when this appeal was last reviewed by the RO in a March 2017 statement of the case, this claim was denied on the basis that the Veteran did not have a current diagnosis.  However, in July 2021, the Veteran submitted a new private psychiatric evaluation that did diagnose him with PTSD and has raised a number of relevant observations. 

The Board feels that it would be prejudicial to evaluate this evidence in the first instance, and potentially deprive the Veteran the opportunity to present further evidence if necessary.  

The matter is REMANDED for the following action:

1. Obtain any outstanding VA treatment records that are currently not of record.  If the Veteran has received any relevant private treatment, he should be afforded the opportunity to submit these records.

 

2. Adjudicate the claim with consideration of all evidence of record.  In doing so, the RO should undertake any development it deems necessary, including VA examinations, should the need arise.  

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica