Citation Nr: 21012625 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-48 214A DATE: March 4, 2021 ORDER Entitlement to bilateral lower extremity peripheral neuropathy has been withdrawn. Entitlement to service connection for bilateral upper extremity peripheral neuropathy has been withdrawn. Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis is granted effective April 5, 2000. REMANDED Entitlement to service connection for neurobehavioral effects is remanded. Entitlement to service connection for non-Hodgkin’s lymphoma is remanded. Entitlement to service connection for autoimmune disease is remanded. Entitlement to service connection for auto hepatitis is remanded. Entitlement to service connection for osteoporosis is remanded. FINDINGS OF FACT 1. On February 17, 2021, prior to the promulgation of a decision in the appeal and at hearing before the Board, the Veteran, through her authorized representative, requested a withdrawal of the claims of entitlement bilateral lower and upper extremity peripheral neuropathy. 2. The Veteran’s service-connected disabilities have precluded her from obtaining and maintaining a substantially gainful occupation since she filed her claim on April 5, 2000. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for bilateral upper extremity peripheral neuropathy by the Veteran and her authorized representative have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of entitlement to service connection for bilateral lower extremity peripheral neuropathy by the Veteran and her authorized representative have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 3. The criteria for entitlement to TDIU on an extraschedular basis from April 5, 2000, have been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1977 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2001, March 2017, and July 2017 decisions. The claims for neurobehavioral effects, non-Hodgkin’s lymphoma, and bilateral upper and lower extremity peripheral neuropathy were before the Board in June 2017 and remanded for compliance with Manlincon v. West, 12. Vet. App. 238 (1999). The statement of the case was issued in August 2017 and the Veteran perfected her appeal in September 2017. The claim for TDIU was most recently before the Board in March 2019 and remanded to the Director of Compensation Service. Entitlement to service connection bilateral lower and upper extremity peripheral neuropathy 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at the February 2021 hearing before the Board, the Veteran, through her authorized representative, withdrew the claims of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Entitlement to TDIU on an extraschedular basis prior to July 1, 2011, The Veteran generally contends that her service-connected low back disability has precluded obtaining and maintaining a substantially gainful occupation. Prior to July 1, 2011, the Veteran was only service connected for low back pain/strain rated 40 percent disabling. See April 2001 Code sheet. Currently, TDIU has been granted since July 1, 2011, when she was rated 40 percent for her low back disability and assigned separate 20 percent ratings for left and right lower extremity radiculopathy bringing her combined rating to 60 percent disabling. See March 2019 Code sheet. Thus, the question currently before the Board is whether the Veteran is entitled to extraschedular TDIU prior to July 1, 2011. Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). To warrant referral for extraschedular consideration, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant a referral; rather, the ultimate question is whether the Veteran’s combined service-connected disabilities, despite falling short of the schedular criteria for TDIU consideration, nevertheless prevented her from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without first ensuring the claim was referred to VA’s Director of Compensation and Pension Service for consideration of an extra-schedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Board’s March 2019 decision remanded this claim for referral to the Director for consideration of an extraschedular TDIU. The Director of Compensation Services denied TDIU on an extraschedular basis prior to July 1, 2011. See December 2019 Advisory Opinion. Regardless, the Board may now review the Director’s determination that entitlement to a TDIU on an extraschedular basis was not warranted and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). The Board finds the evidence is in equipoise as to the matter of entitlement to TDIU prior to July 1, 2011. Thus, the Board shall afford the Veteran the benefit of the doubt and find that entitlement to an extraschedular TDIU is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The effective date shall be explained in further detail below. In a January 2001 statement, the Veteran indicated that she had not worked since April 2000. She stated that her condition was so severe that she was unable to walk or sit. In an August 2009 statement the Veteran described constant lower back pain. She described an inability to sit for more than 45 minutes or walk around the block. She indicated that she could not work as a result of the severity of her back disability. The Veteran was afforded a VA examination in August 2002, the examiner determined that her lumbar spine disability should not preclude employment. A March 2004 VA examination noted the Veteran was currently unemployed and could not sit too long because of her back disability. A December 2010 Employability Evaluation, after reviewing the records, the Veteran’s education and work history, and conducting an occupational analysis, determined that while the Veteran had skills that would enable her to perform sedentary work as an office clerk, accounting clerk, or bookkeeper, her lumbar spine condition in and of itself, without consideration of another non-service connected disabilities, would render her unable to secure and maintain substantially gainful employment. The evaluation noted the physical effects of the Veteran’s disability, to include, but not limited to constant back pain impairing her ability to walk, sit and drive, and poor sleep resulting in ongoing fatigue. The evaluation found the Veteran’s statements were consistent with medical records showing progressive worsening of her back condition over the years. The evaluation indicated the Veteran had not been following gainful employment since 1999, but it was unclear exactly which month she stopped working as there were work attempts in 2000, 2001, 2007, and 2008. A May 2012 VA examination noted the Veteran was unable to lift, bend or stand for more than a few minutes, walk more than 100 feet, or sit for more than a few minutes. The examiner found the Veteran’s back disability severely limited her physical activities, but did not preclude a sedentary employment not requiring standing more than a few minutes, sitting in one position more than a few minutes, walking more than a few feet, climbing stairs, lifting or bending, kneeling or squatting, driving or operating machinery, typing on the computer more than a few minutes at a time, and allowed for taking a break at any time when required for medical or physical needs. An August 2012 letter from Dr. HM shows the Veteran had musculoskeletal conditions preventing her from continuing her employment without significant discomfort. The doctor noted she had pain with prolonged sitting or standing and felt a lot of discomfort physically in her capacity as an accountant. She also had pain with prolonged walking. An August 2014 letter from Dr. MPL revealed the Veteran was medically disabled and unable to work due to her degenerative disc disease. A December 2014 letter from Dr. RC indicated that under his medical advice, the Veteran was unable to work due to conditions, including her low back disability. A November 2016 letter from Dr. DEK indicates that after reviewing diagnostic studies and evaluating the Veteran, as a result of her low back disability and other disabilities resulting from her back, the Veteran was medically determined to be physically disabled and unable to engage in any substantial gainful activity or work. A similar statement received was in September 2018 from Dr. SB, a neurologist. The Board notes a memorandum prepared by the AOJ to the Director of Compensation Service noted the Veteran had not been gainfully employed throughout the appellate period. The AOJ recommended granting TDIU on an extraschedular basis as her capacity to secure or follow gainful employment was eliminated due to her service-connected disability. As indicated at the outset, in December 2019, the Director of Compensation Services denied TDIU on an extraschedular basis prior to July 1, 2011. The Director simply found the medical evidence failed to show that her service-connected low back pain alone rendered her unemployable. The Director did not point to any specific information or medical evidence to support the opinion or provide any rationale. In light of the evidence of record, the Board has afforded this opinion little probative value. Based on the medical evidence above, the Board finds that the Veteran’s service-connected lumbar spine disability has precluded obtaining and maintaining a substantially gainful occupation. Specifically, the Board highlights that, the Veteran consistently and credibly established a pattern of work-related complications due to her low back disability. Further, throughout the appeal period, the severity of the Veteran’s low back disability has prevented the mental and physical acts required to obtain and maintain a substantially gainful occupation, even after attempting other clerical positions as delineated in her various TDIU applications (e.g. secretary, accounting tech, and office clerk). Crucially, the Veteran’s low back disability produced such severe occupational limitations that she would be unable to work without accommodations, excessive absenteeism, or unscheduled absences that would most likely exceed those allowed by typical employers. As noted by the VA examiner in 2012, in order for the Veteran to be able to perform sedentary employment the job would have to not require standing more than a few minutes, sitting in one position more than a few minutes, walking more than a few feet, climbing stairs, lifting or bending, kneeling or squatting, driving or operating machinery, typing on the computer more than a few minutes at a time, and allow for taking a break at any time when required for medical or physical needs. In a January 2001 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran’s employer indicated that they provided her a chair and workstation accommodations for her back condition, “but it did not help her” and employment was terminated because she was out sick too much with back problems. The evidence confirms that the Veteran’s low back disability prohibited her from performing and maintaining demands required at any level of substantial gainful employment. There is some conflicting evidence as to when the Veteran actually became too disabled to work. In her April 2000 application for TDIU, the Veteran indicated that she became too disabled to work in February 1999 and then in March 2000. In July 2000, she filed an additional application indicating that she became too disabled to work in March 2000. In a January 2001 statement, the Veteran indicated that she had not worked since April 2000. The December 2010 Employability Evaluation indicated it was unclear exactly which month she stopped working as there were work attempts in 2000, 2001, 2007, and 2008. In two separate applications for TDIU filed in June 2013, she reported becoming too disabled to work in March 2000 and then in December 2010. In a November 2015 application, she reported March 2000 as when she became too disabled to work. Requests for Employment Information received in January 2001 shows the Veteran last worked April 17, 2000, because she was out “sick too much with back problems.” The same employer submitted another statement in December 2015 showing the Veteran last worked March 30, 2000, because she was “sick too much.” A June 2002 memorandum from the Defense Commissary Agency shows the Veteran was appointed on July 2, 2001, as an accounting technician. She did not complete her probationary period and her employment was terminated on June 28, 2002, although for a disability other than her lumbar spine. Records from the Social Security Administration determined the Veteran was disabled as of January 1, 2002, for disabilities to include her lumbar spine. See February 1, 2005, Notice of Decision. Thus, because the Veteran’s service-connected low back disability has clearly precluded obtaining and maintaining a substantially gainful occupation throughout the appeal period, and there remains a question as to the exact date of unemployability, the Board grants extraschedular TDIU effective April 5, 2000, the date of her initial claim for TDIU. REASONS FOR REMAND Entitlement to service connection for neurobehavioral effects, non-Hodgkin’s lymphoma, autoimmune disease, auto hepatitis, and osteoporosis The Veteran maintains these disabilities are the result of toxin exposure while stationed at Fort McClellan, Alabama. She indicated that she arrived at Fort McClellan on January 26, 1977. She further stated that on January 25, 1977, the U.S. Army Hygiene Agency released a statement regarding the use of toxic Mirex at Fort McClellan in 1974 and 1975 and that service members may have been exposed to toxic substances as a result. See January 2017 VA Form 21-4138. In denying the claims, in pertinent part, the RO has indicated the Veteran’s service personnel records do not verify her service at Fort McClellan. However, the file does not appear to contain her complete service personnel records for her period of service as only her enlistment agreements and an Air National Guard discharge certificate are of record. As they may contain pertinent information to the Veteran’s claims, a remand is required to obtain them. Finally, the Veteran testified that she has continued to seek treatment at VA for the claimed disabilities. The last VA outpatient treatment records associated with the file are dated in April 2019. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records from the U.S. Army, as well as Air National Guard, to include all documents pertaining to her service at Fort McClellan, Alabama, beginning in January 1977. As the Veteran has changed her Social Security number since active duty service discharge, request military service personnel records under both Social Security numbers. 2. Obtain the Veteran’s VA treatment records for the period from April 2019 to the present. 3. Thereafter, and after any additional development necessary, to include ordering examinations, readjudicate the issues considering all the evidence of record. If upon completion of the above actions, the issues remain denied, the matters must be returned to the Board E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.