Citation Nr: 21007502 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 04-36 087 DATE: February 9, 2021 ORDER Effective May 28, 1999, a total disability rating based on individual unemployability (TDIU) is granted on an extraschedular basis. The appeal seeking a rating greater than 40 percent for chronic lower dorsal and lumbosacral strain with degenerative disc disease (back disability) from March 11, 1999, is dismissed. FINDINGS OF FACT 1. Since May 28, 1999, the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation. 2. In a January 2021 written statement, and prior to the promulgation of a decision in this appeal, the Veteran requested to withdraw his pending increased rating appeal. CONCLUSIONS OF LAW 1. Effective May 28, 1999, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.16. 2. The criteria for withdrawal of the Veteran’s increased rating appeal have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1967 to May 1969. This case engages a uniquely prolonged procedural history. This appeal has previously been before the Board in December 2006, September 2008, February 2010, April 2011, September 2012, March 2014, and November 2015, and the Court of Appeals for Veterans Claims (Court) in January 2008, August 2010, February 2012, June 2013, and February 2015. Most recently, these matters were remanded by the Board in October 2018 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran remains in pursuit of a TDIU from May 28, 1999. See October 2018 Board remand (noting that the Veteran stopped working in November 1998, but received disability-related retirement compensation through May 27, 1999, and limiting the period on appeal as such). As an initial matter, the Veteran does not meet the preliminary schedular criteria for a TDIU until February 1, 2016. See 38 C.F.R. § 4.16(a). However, “[i]t is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b). Accordingly, this appeal may still be granted upon a finding that the Veteran’s service-connected disabilities have precluded his substantial and gainful employment since May 28, 1999. On this point, the record reflects that the Veteran has a partial college education, absent additional education or training. See February 2009 VA Form 21-8940. He was most recently employed as a mail handler for the United States Postal Service. He stopped working in November 1998 by reason of “retirement – disability,” but was paid for his accumulated leave through May 27, 1999. See June 1999 Terminal Leave Worksheet (reflecting the reason for separation); June 1999 Notification of Personnel Action (documenting the Veteran’s accumulated leave). The Veteran contends that he was forced to stop working because of his service-connected back disability. See, e.g., February 2009 VA Form 21-8940. The record is in controversy on this point. Critically, this question has been brought before VA’s Director of the Compensation and Pension Service on numerous occasions. In April 2014, the Director concluded that “review of the evidence does not establish that the [V]eteran is unemployed and unemployable due to [his] service-connected disabilities.” By way of rationale, the Director noted that the Veteran did not currently meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Moreover, although the Veteran was currently in receipt of Social Security Administration (SSA) disability benefits, this award was based upon a psychiatric disorder for which service connection was not (and has not subsequently been) established. In November 2018, the Director concluded that an increased evaluation was warranted for the Veteran’s back disability on an extraschedular basis. However, in January 2019, a memorandum was issued which challenged the November 2018 findings for failing to discuss of “all pertinent evidence” or offer an assessment as to the Veteran’s entitlement to an extraschedular TDIU. A corrective May 2019 memorandum was then issued, which holds that an extraschedular TDIU was warranted for this Veteran, effective May 28, 1999. The accompanying analysis addressed the Veteran’s educational and occupational histories; the basis for his retirement; his receipt of SSA benefits; and extensive medical records addressing the combined impact of his service-connected disabilities. In doing so, the Director noted that the Veteran’s treatment providers had indicated a worsening of his back disability over the years, such that he was now “totally disabled due to his symptoms of back condition.” An additional opinion was obtained in January 2020. At that time, the Director concluded that entitlement to a TDIU on an extraschedular basis from May 28, 1999, was not warranted. By way of rationale, the Director observed that the Veteran’s SSA benefits were based upon a nonservice-connected psychiatric disorder. Moreover, the Veteran’s service-connected gastric disability had no impact on his employability, while his back disability did not render him unemployable. Instead, multiple VA examiners have concluded that the Veteran’s back condition was not so debilitating that he could not maintain sedentary employment. In contrast, a January 2021 private vocational expert concluded that the Veteran’s back and bilateral lower extremity disabilities “have rendered him completely impaired . . . he would be incapable of maintaining gainful employment in any physical capacity from sedentary to heavy work,” from at least October 1998. In doing so, the expert provided an overview of her own qualifications to assess the Veteran’s occupational capacity, conducted an in-person evaluation of the Veteran, and reviewed the entire claims file. In the accompanying and comprehensive analysis, the expert also addressed the Veteran’s current functional impairments; his academic and occupational histories; the physical demands of his prior positions, as supported by literature; the nature and severity of his current symptoms, as supported by medical records; and the prior findings of the SSA and VA’s Director of the Compensation and Pension Service. The expert then synthesized this evidence to conclude that the Veteran’s symptoms, including chronic pain and neurological impairment, “resulted in his inability to perform the physical details or concentrate to perform the cognitive details of his work.” Combined with his education and work experience, which “does not readily translate to light or sedentary occupational environments,” it was more likely than not that the Veteran had been unemployable since at least October 1998. Such sentiments have long been echoed by the Veteran’s private treatment provider, who has repeatedly asserted that his service-connected disabilities render him totally disabled and unemployable. See, e.g., private treatment letters dated March 2000 (referring to the Veteran’s “longstanding and totally disabling physical condition”); March 2008 (noting that the Veteran has constant and severe pain and has been “unable to work in any capacity” because of his back condition); January 2009 (reiterating the March 2008 findings); December 2010 (challenging the findings of various VA examiners and noting that the Veteran’s disabilities cause severe lower back pain which prevent him from securing gainful employment); and January 2014 (noting that the Veteran experiences severe and radiating lower back pain and limited range of motion, such that he “is one hundred percent disabled and incapable of working in any gainful capacity”); see also August 2018 private assessment (concurring with the private physician’s assessments and concluding that the Veteran’s back disability alone has left him unemployable since at least 1999). The Veteran’s testimony on this matter has also not deviated during the period on appeal; rather, he has consistently maintained that his service-connected disabilities prevent his gainful employment due to such symptoms as chronic pain and limitation of motion. Multiple buddy statements also speak to the degree of functional impairment he has demonstrated throughout the period on appeal. See, e.g., buddy statements dated September 2010 (noting the Veteran’s decreased movement and activity due to increased pain, such that he was unable to dance, play golf, or drive long distances); October 2010 (noting that the Veteran complained of constant pain, which “forced him into early retirement” and prevented him from doing the “things he truly loved to do”); and February 2011 (noting the Veteran’s decreased capacity for activities including golfing, bowling, or performing yardwork). In considering the above, the evidence weighs in favor of this appeal. In offering such a conclusion, the Board is cognizant that there is negative evidence of record, to include the January 2020 Director’s memorandum and multiple VA examinations which document some, but not total, occupational impairment due to the Veteran’s disabilities. However, these records demonstrate significant deficiencies which undermine their probative value. Notably, the January 2020 memorandum is based upon only a cursory review of the record, in direct contrast to a prior positive memorandum and without any discussion as to the body of evidence which supports the Veteran’s claim. Additionally, the VA examinations were conducted by one-time service providers, rather than experts who have consistently assessed and treated the Veteran for his disabilities throughout the appeal period. Moreover, the VA examiners routinely disregard the Veteran’s competent and credible testimony regarding the nature and severity of his symptoms and their perceptible impact on his functioning. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The positive evidence is far more probative in this case. Specifically, the May 2019 memorandum is based upon the Director’s most detailed analysis to date, with specific references to the evidence relevant to this appeal. Even more compelling is the January 2021 private vocational assessment, which offers a comprehensive analysis of the Veteran’s educational, occupational, and medical histories, as supported by extensive records and academic resources. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Compellingly, the January 2021 assessment is offered by an expert who is trained to assess an individual’s occupational capacity, and there is no evidence that she misstated any relevant evidence in her analysis. Additionally, the above evidence is directly supported by the lay testimony of record, which consistently indicates that the Veteran’s symptoms, including chronic pain, have severely limited his functioning and, at the very least, contributed to his retirement. Thus, the most probative evidence establishes that the Veteran’s service-connected disabilities have precluded his substantial and gainful employment throughout the period on appeal. His physical symptoms mandated his retirement from the United States Postal Service, and have prevented any subsequent sedentary employment, particularly that commensurate with the Veteran’s academic and occupational backgrounds. In affording the Veteran the benefit of the doubt, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation, and entitlement to a TDIU from May 28, 1999, is hereby granted. Dismissal Turning to the increased rating appeal, 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 January 2021, the Veteran’s representative submitted a written statement indicating that the “grant of a ‘total’ rating (on any basis) as of May 28, 1999 will be considered a full grant of the benefit sought on appeal in this case.” The Veteran has not subsequently deviated from this representation. This letter, from the Veteran’s accredited attorney, meets all the criteria to be considered a valid withdrawal of a legacy appeal. 38 C.F.R. § 19.55. Herein, the Board awarded the Veteran a TDIU from May 28, 1999, constituting the grant of a total rating. In accordance with the Veteran’s express and written sentiment, the Board finds that there are no remaining allegations of errors of fact or law for appellate consideration with respect to the increased rating appeal. Accordingly, the Board does not have jurisdiction to review the matter and it is dismissed. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.