Citation Nr: 21072720 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 11-12 743 DATE: December 6, 2021 ORDER The appeal pertaining to the issue of entitlement to service connection for diabetes mellitus is dismissed. The appeal pertaining to the issue of entitlement to service connection for sarcoidosis/lymphadenopathy is dismissed. The appeal pertaining to the issue of whether new and material has been received in order to reopen a claim of entitlement to service connection for a low back disorder is dismissed. The appeal pertaining to entitlement to a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity is dismissed. As of February 7, 2008, but no earlier, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision, in an October 25, 2021, written communication, the Veteran, through his representative, withdrew his appeal pertaining to the issues of entitlement to service connection for diabetes mellitus and sarcoidosis/lymphadenopathy, whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder, and entitlement to a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity. 2. As of February 7, 2008, but no earlier, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for diabetes mellitus by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for a sarcoidosis/lymphadenopathy by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal pertaining to the issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. As of February 7, 2008, but no earlier, the criteria for a TDIU has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from May 1982 to August 1982 and January 1986 to April 1986, and achieved Veteran status based on an automobile accident that occurred during a period of active duty for training, October 24, 1988, to November 19, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2014, the Board remanded the case for additional development and, in May 2019, as relevant, granted a separate rating of 30 percent, but no higher, for peripheral neuropathy with ulnar nerve involvement of the right upper extremity as of February 7, 2008, and assumed jurisdiction over a claim for a TDIU as part and parcel of the increased rating claims on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded such for additional development. The Board further declined jurisdiction over claims for service connection for diabetes mellitus and sarcoidosis/lymphadenopathy, and whether new and material evidence had been received in order to reopen a claim of entitlement to service connection for a low back disorder. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and, in May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the Board's May 2019 decision to the extent that such denied a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity, and declined jurisdiction over the aforementioned service connection and new and material evidence claims. While on remand, an August 2021 rating decision awarded a TDIU as of February 1, 2009. However, as such claim is part and parcel of the Veteran's claim for an increased rating for his peripheral neuropathy with ulnar nerve involvement of the right upper extremity, which stems from February 7, 2008, the Board retains jurisdiction over the issue of entitlement to a TDIU from February 7, 2008, to February 1, 2009. Rice, supra; Harper v. Wilkie, 30 Vet. App. 345 (2018). 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for sarcoidosis/lymphadenopathy. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder. 4. Entitlement to a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. For withdrawals not made on the record at a Board hearing, such must be in writing and include (1) the name of the appellant, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id.; Hembree v. Wilkie, 33 Vet. App. 1 (2020). Prior to the promulgation of a decision, in an October 25, 2021, written communication, the Veteran, through his representative, withdrew his appeal pertaining to the issues of entitlement to service connection for diabetes mellitus and sarcoidosis/lymphadenopathy, whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder, and entitlement to a rating in excess of 30 percent for peripheral neuropathy with ulnar nerve involvement of the right upper extremity. In regard to the increased rating claim, the Veteran's representative indicated that the appeal pertaining to the time period from February 7, 2008, to January 31, 2009, was only withdrawn if a TDIU was awarded as of February 7, 2008. As such is awarded herein, the Board finds that the appeal as to the entire time period on appeal is withdrawn. In this regard, such statement was in writing, authored by the Veteran's representative, included the correct file number, and explicitly identified the issues to be withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of such issues and they are dismissed. 5. Entitlement to a TDIU prior to February 1, 2009. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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 or more. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice, 22 Vet. App. 452. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, 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, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The appeal period before the Board stems from February 7, 2008, the date a separate rating was assigned for the Veteran's peripheral neuropathy with ulnar nerve involvement of the right upper extremity, to February 1, 2009, the date a TDIU has been awarded. For the entire appeal period, the Veteran is service-connected for major depressive disorder, peripheral neuropathy with ulnar nerve involvement of the right upper extremity, residuals of right wrist injury, right and left knee degenerative joint disease, and residuals of right radial head fracture. Furthermore, as of February 7, 2008, the Veteran is in receipt of a combined schedular rating of 80 percent, exclusive of the time periods were temporary total ratings have been assigned, with his major depressive disorder evaluated as 50 percent disabling. Consequently, the Veteran meets the schedular criteria for a TDIU for the entire appeal period from February 7, 2008, to February 1, 2009. In this regard, the Board notes that the Agency of Original Jurisdiction (AOJ) erroneously stated in the August 2021 rating decision awarding a TDIU as of February 1, 2009, such was the date the Veteran met the schedular criteria for such benefit. However, as argued by the Veteran's representative in his October 2021 Appellant's Brief and as discussed above, such is incorrect and the Veteran does indeed meet the schedular threshold for a TDIU for the entire appeal period. In regard to the Veteran's education and work history, he reported in his June 2009 and November 2019 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), that he last worked full-time in October 1997, and previously held various positions, to include a business owner, IRS examiner, and investigator. He also reported that he held a Bachelor of Arts degree. However, Vocational Rehabilitation and Employment (VR&E) records reflect that the Veteran also worked as an advocate for children with special needs from 2000 to 2003, and had completed courses towards his Masters of Business Administration (MBA). As pertinent to the functional impairment associated with his service-connected disabilities, the Veteran reported that he can only type slowly on the computer due to the disabilities affecting his right upper extremity in a February 2008 VR&E Rehabilitation Needs Inventory. A VR&E assessment done the same month reflects the Veteran's report that he was unable to reach, push, or pull with his right arm, cannot carry heavy items, and is unable to lift over 10 pounds. He further indicated that he would lose feeling in his arm if he rested on his right elbow, and it was noted that his hand cramps when writing and makes typing difficult. The Veteran also stated that he experienced depression, which resulted in social withdrawal and increased sleep. At a June 2008 VA examination, it was determined that the Veteran's right wrist disability prevents him from shopping, exercise, and recreation, has a severe impact on chores, feeding, bathing, and dressing, and has a moderate impact on traveling, toileting, and grooming. It was also noted that his spouse helped him with his shoes and any actions that require fine motor functioning. In December 2008, the Veteran underwent arthroscopic surgery of the right wrist that revealed TFCC tear and partial tear of the right scapholunate ligament with several trigger fingers. At a February 2009 VA examination, it was noted that, since the Veteran's right wrist surgery, his right forearm, hand, and wrist are extremely sensitive to touch and cold, he experienced severe pain in the area of the right wrist and trigger finger repairs, and had decreased strength in his right forearm, wrist, and hand. The examiner noted that the Veteran had previously worked as an advocate for children with special needs, but retired due to medical problems, to include depression and his right hand disability. He further indicated that the Veteran's right wrist disability impacted his occupational activities insofar as he had decreased manual dexterity, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the upper extremity, and pain. Such also prevented sports; had a severe effect on chores, shopping, exercise, recreation, traveling, bathing, and dressing; had a moderate effect on feeding and grooming; and a mild effect on toileting and driving. Also in February 2009, it was noted that the Veteran reported decreased right wrist/hand range of motion with significant pain and decreased sensation in the hand. He was unable to fasten buttons with his right hand and was able to write for only short periods of time using his right hand a modified grip before experiencing pain/fatigue. He had a decreased ability to complete tasks that require a strong pinch. Additionally, based on similar symptoms related to the Veteran's right upper extremity, an October 2014 VA examiner found that such disability was significantly impairing for any job requiring light ot heavy use of the right hand, which would affect most of the sedentary, and all of the labor, jobs. Furthermore, contemporaneous treatment records and a subsequent October 2014 VA examination reflects that the Veteran's bilateral knee disabilities result in a loss of range of motion and, due to such disabilities, he required a job that allowed frequent, but not extensive, ambulation. Similarly, such reflect that his major depressive disorder results in occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, while the Veteran's major depressive disorder and bilateral knee disabilities increased over time, which resulted in the award of a higher ratings as of December 18, 2018, his right upper extremity disability has been stable throughout the appeal period and, in this regard, a January 2020 VA examiner determined that, in light of such disability, he would benefit from employment that does not require repetitive tasks with the right hand (such as typing) and does not require prolonged gripping and grasping with the right hand. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that, for the appeal period from February 7, 2008, to February 1, 2009, his disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, while the record shows that the Veteran has a college degree and courses towards an MBA and has performed various physical and sedentary jobs, to include business owner, IRS examiner, and investigator, his service-connected disabilities preclude him from performing similar work. Specifically, his physical disabilities do not allow him to perform manual labor and his right upper extremity disability precludes a large majority of administrative tasks that are inherent in performing a sedentary position. Furthermore, his major depressive disorder results in an overall decrease in productivity and reliability in any position. Consequently, due to such service-connected disabilities, the Board finds that, as of February 7, 2008, the Veteran does not have the physical or mental ability to perform the activities required by occupations that are consistent with his education and work history. Therefore, a TDIU as of February 7, 2008, but no earlier, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.