Citation Nr: 21073573 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-33 808 DATE: December 9, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is dismissed. Entitlement to a rating in excess of 20 percent for left knee, degenerative joint disease is dismissed. Entitlement to service connection for pinched nerves in the neck is dismissed. Entitlement to service connection for pinched nerves in the back is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) effective June 29, 2012, is granted. FINDINGS OF FACT 1. In May 2021, the Veteran, through his representative, submitted a request to withdraw his claim of entitlement to an initial compensable rating for bilateral hearing loss. 2. In May 2021, the Veteran, through his representative, submitted a request to withdraw his claim of entitlement to a rating in excess of 20 percent for left knee, degenerative joint disease. 3. In May 2021, the Veteran, through his representative, submitted a request to withdraw his claim of entitlement to service connection for pinched nerves in the neck. 4. In May 2021, the Veteran, through his representative, submitted a request to withdraw his claim of entitlement to service connection for pinched nerves in the back. 5. The Veteran's service-connected left eye disability, depressive disorder to include traumatic brain injury, left knee disability, left shoulder disability, and left meniscectomy are considered as one disability, for the purposes of determining whether the Veteran's combined service-connected disabilities meet the schedular TDIU criteria, because they all resulted from a 1972 motor vehicle accident. 6. The service-connected conditions considered as one disability combine for a single rating of 70 percent as of June 29, 2012. 7. The Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation from June 29, 2012. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial compensable rating for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for left knee, degenerative joint disease, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection for pinched nerves in the neck have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to service connection for pinched nerves in the back have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for entitlement to a TDIU due to service-connected disabilities, effective June 29, 2012, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from November 1970 to October 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a notice of disagreement in July 2014. The RO issued a statement of the case in March 2018. The Veteran submitted his substantive appeal in March 2018. The appeal has previously been before the Board. In June 2020, the Board remanded the issues indicated above, as well as the issue of entitlement to service-connection for depression. The RO issued a supplemental statement of the case addressing those issues in March 2021. The Board notes that by a March 2021 rating decision, the RO granted entitlement to service-connection for depressive disorder, effective June 29, 2012. A December 2020 Board decision granted schedular TDIU from October 6, 2017, and remanded the issue of entitlement to an extra-schedular TDIU prior to October 6, 2017. The RO issued a supplemental statement of the case in June 2021 regarding extra-schedular TDIU. The remanded issues have now been returned to the Board for further appellate review. Dismissal 1. Entitlement to an initial compensable rating for bilateral hearing loss is dismissed. 2. Entitlement to a rating in excess of 20 percent for left knee degenerative joint disease is dismissed. 3. Entitlement to service connection for pinched nerves in the neck is dismissed. 4. Entitlement to service connection for pinches nerves in the back 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant, through his authorized representative, has withdrawn his appeal pertaining to the issues of entitlement to an initial compensable rating for bilateral hearing loss, a rating in excess of 20 percent for left knee degenerative joint disease, service connection for pinched nerves in the neck, and service connection for pinched nerves in the back. Hence, there remain no allegations of errors of fact or law for appellate consideration in regard to the withdrawn issues. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and they are, therefore, dismissed. TDIU Entitlement to a TDIU, effective June 29, 2012 The Veteran contends that throughout the period on appeal he was incapable of obtaining and maintaining gainful employment due to his service-connected disabilities. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with the Veteran's education and occupational experience. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 361 (1993). If there is only one such disability, it must be rated at 60 percent or more; and 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. 38 C.F.R. § 4.16(a). If a Veteran fails to meet the percentage requirements laid out in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). As discussed above, in a March 2021 rating decision, the RO granted entitlement to service-connection for depressive disorder, to include traumatic brain injury, and assigned a 30 percent disability rating, effective June 29, 2012. Therefore, from June 29, 2012 to October 5, 2017, the Veteran was service connected for a left eye disability rated at 30 percent; depressive disorder with traumatic brain injury rated at 30 percent; left knee, degenerative joint disease, rated at 20 percent; a left clavicle disability rated at 20 percent; and bilateral hearing loss with a non-compensable rating. The Veteran's combined disability rating as of June 29, 2012 was 70 percent. Per 38 C.F.R. § 4.16(a), the Veteran's service-connected left eye disability, depressive disorder to include traumatic brain injury, left knee disability, left shoulder disability, and left meniscectomy are considered as one disability, for the purposes of determining whether the Veteran's combined service-connected disabilities meet the schedular TDIU criteria, because they all resulted from the 1972 motor vehicle accident. In considering those disabilities as one disability, there was a single disability with a rating of 70 percent as of June 29, 2012. Therefore, the schedular TDIU criteria are met from June 29, 2012. As the Veteran has met the schedular TDIU criteria from June 29, 2012, the question turns to whether the Veteran was able to secure or follow a substantially gainful occupation due to his service-connected disabilities between June 29, 2012 and October 5, 2017. In March 2017, the Veteran submitted VA Form 21-8940, Application for Increased Compensation Based on Unemployability. His reported work history was limited to the field of construction. This is consistent with the medical evidence, including VA examinations, indicating that he had worked in construction, including driving a truck. Due to his knowledge of heavy construction, the Veteran has performed work for his daughter completing estimates related to earth and soil removal. However, this work has provided limited pay, and does not raise to the level of gainful employment. Educational information of record indicates that he attended Universal Heavy Construction Schools. See Education Memo. The Veteran's application for program of education or training shows the Veteran completed 10th grade and did not acquire a high school equivalency diploma. The Veteran stated at the September 2020 VA mental disorders examination that he did not earn his high school diploma; following his separation from service he began taking classes at Seminole City College, but he dropped out. The Veteran has undergone multiple VA examinations for his service-connected disabilities. A January 2012 VA eye examination reveals that the Veteran is completely blind in his left eye. An August 2013 hearing examination noted that the Veteran reported difficulty hearing people or understanding words, especially when speaking with his girlfriend. An August 2013 left knee examination determined that the Veteran had less than normal movement, pain on movement, disturbance of locomotion, interference with sitting, standing, climbing, and weight-bearing. A private opinion regarding the Veteran's employability due to his service-connected depressive disorder was conducted in December 2014, by Dr. H-G. Dr. H-G indicated that the Veteran had a diagnosis of major depressive disorder and opined that the Veteran was unable to engage in gainful employment activity due to his physical and mental limitations. It was explained that the Veteran could not sustain the stress from a competitive work environment, he has disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work and work-like setting. A private opinion addressing the impact of the Veteran's service-connected impairments on his ability to work was completed by Dr. MB in July 2020. Dr. MB reviewed the entire claims file and opined that it is as likely as not that the combination of pain and limitations caused by the Veteran's service-connected impairments prevent him from being able to work full time. It was explained that limitations such as standing less than ten minutes due to severe pain; only being able to sit for 5 to 10 minutes without having to get up and move around due to knee pain; lifting only 5 to 10 pounds occasionally; significantly limited vision; and severely interrupted sleep with resulting excessive daytime sleepiness, fatigue and irritability result in a combination of service-connected impairments that preclude the Veteran from obtaining and maintaining gainful employment. Another private opinion considering the Veteran's ability to obtain and maintain gainful employment was completed by a Vocational Specialist, Dr. SGB, in July 2021, and was associated with the case file in September 2021. Dr. SGB thoroughly reviewed the medical records and determined that the Veteran has a combination of physical and mental conditions which interact in terms of severity level. Due to the combination of his service-connected impairments he has been precluded from obtaining and maintaining gainful employment. Based on the totality of his service-connected disabilities, Dr. SGB found that the Veteran is totally occupationally disabled from all competitive employment since June 29, 2012. Importantly, the determinations made by Dr. SGB, in July 2021, acknowledge the same types and levels of occupational impairments as those by Dr. MB, in July 2020, which was a significant factor in the Board's grant of a schedular TDIU as of October 6, 2017. The findings of Dr. H-G are also consistent with opinions of Dr. SGB, further supporting the Veteran's inability to obtain and maintain gainful employment from June 29, 2012. Although not determinative, the Board notes that the Social Security Administration found the Veteran to be disabled and unemployable, based greatly upon his service-connected disabilities. The evidence shows the Veteran has been unemployable in the field of construction, due to his left eye blindness and physical limitations of his service-connected left knee and left shoulder disabilities. Furthermore, the Veteran has not been trained in any other field than that of construction and his highest level of education is the 10th grade, significantly limiting potential job positions outside of his known field of construction. Additionally, his depression symptoms, vision limitations, trouble with clearly hearing when he is spoken to, and difficulty with sitting, standing, walking, or lifting for any extended period of time would likely preclude the Veteran from finding and maintaining gainful employment. Accordingly, the Board finds that the evidence is, at minimum, in equipoise regarding whether the Veteran's service-connected disabilities rendered him unemployable from June 29, 2012 to October 5, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). The benefit of the doubt will be conferred in the Veteran's favor, and the claim for a TDIU effective June 29, 2012 is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.