Citation Nr: 21074293 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-32 957 DATE: December 14, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the lumbar spine (previously rated as degenerative disk disease) 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). ORDER The claim of entitlement to a disability rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the lumbar spine is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from September 13, 2016, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. At the September 2021 virtual hearing the Veteran withdrew his claim of entitlement to an increased disability rating in excess of 10 percent for his service-connected intervertebral disc syndrome (IVDS) of the lumbar spine. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran's service-connected major depressive disorder, IVDS of the lumbar spine and irritable bowel syndrome preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to an increased disability rating in excess of 10 percent for his service connected IVDS of the lumbar spine have been met. 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.40, 3.41, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from September 1996 to September 1999 and from December 2001 to October 2005 and from October 2005 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Entitlement to a disability rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the lumbar spine. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 Veteran or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the claim of entitlement to a disability rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the lumbar spine. Hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran withdrew this appeal at his September 2021 virtual hearing before the undersigned Veterans Law Judge. The Veteran, with his attorney present, was informed by the undersigned Veterans Law Judge of the consequences of his withdrawal. See September 1, 2021 Board Hearing transcript, pgs. 3-4. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Entitlement to a total disability rating based upon individual unemployability (TDIU). A TDIU rating may be assigned where the combined schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of: 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a), see also 38 C.F.R. §§ 3.340, 3.341. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16. Here, the Veteran is service connected for major depressive disorder, at 70 percent from March 7, 2012; ischemic neuropathy, left calf resulting in Foot Drop, residuals of ectopic spleen surgery, 40 percent from March 7, 2012; tinnitus at 10 percent from March 7, 2012; irritable bowel syndrome at 10 percent from March 7, 2012 and 30 percent from April 3, 2018; intervertebral disc syndrome lumbar spine (previously rated as degenerative disk disease) 10 percent from March 7, 2012 and 10 percent from February 18, 2017. The Veteran's combined disability is 90 percent from March 7, 2012. As such, the Veteran meets schedular percent requirements for a TDIU for the entire period on appeal. Appeal period The Board notes that the Veteran's TDIU claim was raised in the context of his increased rating claim for IVDS of the lumbar spine (back disability) and major depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran filed his claim on November 23, 2016, the current appeal period begins on November 23, 2015, one year prior to the date of receipt of his increased rating claims. 38 C.F.R. § 3.400 (o) (2). Discussion The Veteran asserts that his service-connected irritable bowel syndrome, back disability and major depressive disorder preclude him from securing or following any substantially gainful occupation. On his VA Form 21-8940, the Veteran reported that that he has a bachelor's degree in Management and Information Systems as well as a bachelor's degree in Management. The Veteran also reported that he last worked from August 29, 2016 to September 12, 2016. On his VA Form 21-8940, the Veteran reported that the last position he held, he was employed as an assistant manager for a Hotel. Prior to his position as an assistant manager, the Veteran reported that he held positions in the fields of telemarketing, Customer service (call center) and hospitality (Hotel management-assistant manager). See November 23, 2016, VA Form 21-8940. The Board also notes that a January 2018 treatment record indicates that the Veteran was employed a jewelry department in a Mall. See January 25, 2018 treatment record. Additionally, a May 24, 2019 treatment record indicates that Veteran was employed as an Uber driver. Examinations In a January 2017 Mental Disorders examination, the VA examiner confirmed the Veteran's diagnosis of major depressive disorder, recurrent, moderate. No other mental health diagnosis was rendered. Addressing occupational and social impairment resulting from the Veteran's psychiatric disability, the VA examiner concluded that the Veteran's psychiatric disability was best summarized as occupational and social impairment with reduced reliability and productivity. See January 27, 2017 Mental Disorders examination, pgs. 1-3. The VA examiner determined that the Veteran's psychiatric disability manifests symptoms of disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran's psychiatric disability does impact his ability to work. Specifically addressing functional impairment, the January 2017 examiner reported that the Veteran struggles with anger as well as lack of motivation and apathy which could negatively affect job performance/productivity. Additionally, the examiner reported that issues with anger could negatively affect ability to cope effectively with coworkers, supervisors and customers. Id. at pg. 6. In a February 2017 Back Conditions examination, the examiner confirmed the Veteran's diagnosis of intervertebral disc syndrome and degenerative disc disease of the thoracolumbar spine. The examiner also rendered a diagnosis of radiculopathy of the left lower extremity. See February 18, 2017 Back Conditions examination, pg. 2. The February 2017 examiner reported that the Veteran's back disability did impact his ability to work. Addressing functional impairment, the VA examiner reported that the Veteran's back disability caused pain with walking, running, bending and lifting. The examiner also reported that the Veteran would need to avoid jobs requiring normal sensation in the feet. Id. at 12. In a October 2018, Peripheral Nerves Conditions examination, the examiner rendered a diagnosis of left leg radiculopathy. See October 30, 2018 Peripheral Nerves Conditions examination, pg. 1. The examiner determined that the Veteran's left leg radiculopathy did impact his ability to work. The examiner reported that the Veteran would have to have a L ankle brace on any time he walks. See October 30, 2018 Peripheral Nerves Conditions examination, pg. 8. Board Hearing testimony At his September 2021 Board Hearing, the Veteran testified that he generally could get a job because of his education but that he cannot keep a job for any length of time due to the combination of impairments caused by his service-connected disabilities. The Veteran testified that he was not currently employed. See September 1, 2021 Board Hearing transcript pgs. 4-5. The Veteran testified that he held positions in customer service, which required him to be on the phone for certain period of time. The Veteran testified that due to his service-connected irritable bowel syndrome, he would often have to log out to take a bathroom break, which would cut down on his required phone time. To make up for this lost time, he would not take a lunch break or any other scheduled break. The Veteran testified that due to his service-connected back disability he cannot sit for too long, or stand for too long. The Veteran testified that he also has to wear a compression stocking on his leg and wears a brace due to foot drop. With regards his major depressive disorder, the Veteran testified that he withdraws from people, including his family. The Veteran testified that his depression causes irritability and anger. The Veteran testified that his major depressive disorder impacts his ability to concentrate and focus. The Veteran testified that since his separation from service, he has held at least 10 jobs. The Veteran testified that he last worked in customer service in July 2020. See Board Hearing transcript, pgs. 5-8 & 10-12. Analysis The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16. The Board observes that each VA examiner outlined above reported that the Veteran's service-connected disability does impact his ability to work. See January 27, 2017 Mental Disorders examination, pg. 6; February 18, 2017 Back Conditions examination, pg. 12; October 30, 2018 Peripheral Nerves Conditions examination, pg. 8. The Board notes that the Veteran's psychosocial difficulties associated with his major depressive (anger and lack of motivation) negatively impact job performance/productivity and negatively impact his ability to cope effectively with coworkers, supervisors and customers. The Board also notes that the Veteran's physical limitations associated with his back disability impairs his walking, bending and lifting. The physical limitations associated with his irritable bowel syndrome requires him to take frequent bathroom breaks. In summary, the Board finds that the Veteran's psychosocial difficulties associated with his major depressive disorder in combination with the physical limitations associated with his back disability and irritable bowel syndrome, precludes his ability to maintain jobs that require sitting (sedentary work) and jobs that require physical or manual labor. In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. It is important to note that the Board is cognizant that the Veteran does have an education that places him a position to secure a job. The Veteran has testified that he has had ten jobs since his separation from service. The critical question for the Board however is whether the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. The Board is cognizant the Veteran has held multiple positions since his 2016 full-time position as an assistant manager. Upon thorough review of the record, the Board observes however that the evidence indicates that the Veteran has sustained only brief periods of employment since 2016. See, e.g., November 23, 2016 VA Form 21-8940; See also, January 25, 2018 treatment record re: jeweler in a mall; May 24, 2019 treatment record re: Uber driver. Otherwise stated, even when considering the Veteran's education and work experience, which often places him in a position to secure a job, the cumulative evidence of record indicates that the combination of his service-connected disabilities, specifically his major depressive disorder, IVDS of the lumbar spine and irritable bowel syndrome, severely impairs his ability to maintain substantially gainful employment for more than a few monthsor in some cases, weeks. In conclusion, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's service-connected major depressive disorder, IVDS of the lumbar spine and irritable bowel syndrome preclude him from securing or following a substantially gainful occupation. See Lynch v. McDonough, 999 F.3d 1391, at 1395 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. Hence, the Board finds that TDIU is warranted from September 13, 2016, the earliest evidence in which it was factually ascertainable that the Veteran's service-connected disabilities precluded from maintaining gainful employment. See November 23, 2016 VA-Form 21-8940. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.