Citation Nr: 21014061 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-15 781 DATE: March 11, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to disability rating greater than 60 percent, prior to July 20, 2017, and 20 percent thereafter for service-connected intervertebral disc syndrome with arthritis is dismissed. Entitlement to a disability rating greater than 20 percent for radiculopathy of the left femoral nerve is dismissed. Entitlement to a disability rating greater than 20 percent for radiculopathy of the right femoral nerve is dismissed. Entitlement to a disability rating greater than 20 percent for radiculopathy of the left sciatic nerve is dismissed. Entitlement to a disability rating greater than 20 percent for radiculopathy of the right sciatic nerve is dismissed. FINDINGS OF FACT 1. Over the course of the entire appeal period, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. 2. In a December 2020 letter, the Veteran’s accredited representative noted that a grant of TDIU would satisfy his appeal; therefore, there are no errors of fact or law to discuss for the remainder of the Veteran’s claims. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met over the course of the entire appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. 2. The criteria for dismissal of the remaining claims have been met. 38 U.S.C. § 7015; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1974 to November 1992. For his meritorious service, the Veteran was awarded (among other decorations) the Navy Achievement Medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a July 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2020. A transcript of the hearing is in the Veteran’s file. 1. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that the veteran is precluded, because of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Over the course of the appeal period here, the Veteran has numerous service-connected disabilities; his combined disability rating is at least 70 percent. Prior to 2017, he had at least one disability rated at 40 percent or higher. After 2017, the Veteran’s service-connected back disability was reclassified into multiple disability ratings, as such a change resulted in a greater disability rating. For this period, the Veteran’s service-connected back disability may be considered with his service-connected radiculopathy as one disability, meeting the 40 percent threshold for one disability. As such, the Veteran meets the preliminary schedular criteria for consideration for entitlement to a TDIU. 38 C.F.R. § 4.16. Further, the Veteran has presented evidence that his service-connected disability precludes him gainful employment. The Veteran contends that the cumulative effect of his service-connected disabilities precludes him from gainful employment. The Veteran service-connected low back disability was noted to impact his ability to work due to limitations in standing, sitting, bending, and lifting. The pain medication used to control the Veteran’s pain also prevents the Veteran from driving and operating machinery. The Veteran’s bilateral lower extremities radiculopathy also limits his ability ambulate, bend, and drive. Considering the Veteran’s educational and employment history, the Board finds that the Veteran would not be able to complete the economic and non-economic components of employment. Therefore, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities renders him unable to secure and maintain substantial and gainful employment and the Board resolves the benefit of the doubt in favor of the Veteran in this case. Based on the foregoing, the Board finds the evidence has shown that the Veteran would be unable to obtain and maintain employment based on his service-connected disabilities. The appeal is granted. 2. Remaining Claims Following the Veteran’s hearing, the Veteran, his agent, and the undersigned Veterans Law Judge discussed the question of whether granting a TDIU would satisfy his claim for benefits. Subsequently, in a December 2020 letter, the Veteran’s agent confirmed after speaking with the Veteran that the parties would be satisfied with such a grant. Here, as noted above, the Board has granted the Veteran’s claim for a TDIU for the entire period on appeal. In line with the Veteran’s December 2020 letter (as submitted by his agent), the Board finds that this action is a complete satisfaction of the benefits sought. The December 2020 letter included the Veteran’s name, his file number, and a clear statement regarding the effect that granting a TDIU would have. In light of those facts, the Board finds that the December 2020 letter may serve as a valid withdrawal of the remaining issues, as there are no longer any errors of fact or law for the Board to evaluate. 38 C.F.R. § 19.55. The Board appreciates the candor and assistance of the Veteran and his agent in resolving this appeal, and is pleased that a favorable outcome has been reached. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.