Citation Nr: 21029840 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-45 372 DATE: May 17, 2021 ORDER Effective March 30, 2012, a total disability rating based on individual unemployability (TDIU) is granted. The appeals seeking higher ratings for lumbar disc disease with scar, lumbar radiculitis of the left lower extremity sciatic nerve, and lumbar radiculopathy of the right lower extremity sciatic nerve, are dismissed. FINDINGS OF FACT 1. Since March 30, 2012, 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 during the Veteran's January 2021 virtual hearing, and prior to the promulgation of a decision in this appeal, the Veteran requested to withdraw his pending increased rating appeals. CONCLUSIONS OF LAW 1. Effective March 30, 2012, the criteria for entitlement to a TDIU 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 appeals 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 Army from March 1978 to October 1983 and November 1984 to June 1995, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, Army Achievement Medal, and Overseas Service Ribbon. The Veteran testified during a January 2021 virtual hearing. A transcript of this proceeding has been associated with the record. As to the right lower extremity, service connection was awarded for this disability in an August 2017 rating decision. For unknown reasons, the initial rating assigned to this disability was also addressed in a corresponding August 2017 Statement of the Case (SOC). The Veteran did not submit a Notice of Disagreement (NOD) for this award until August 2018, after which a Supplemental SOC (SSOC) was not issued nor a VA Form 9 provided. Nonetheless, this matter was discussed during the January 2021 hearing. Upon this history, it is found that the Veteran has reason to believe that this matter is on appeal, and it will be considered herein. See 38 C.F.R. § 20.202; see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal). Upon review of the record, the Board identifies two outstanding service connection claims for heart and psychiatric disorders which have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). See June 2012 lay statement (alleging that a current heart disorder may be related to service); April 2013 private treatment letter (reporting a current psychiatric disorder as secondary to the Veteran's service-connected back disability); May 2013 Lumbar Spine Impairment Questionnaire (reporting depression secondary to spinal impairment). As such, the Board does not have jurisdiction over these matters and they are instead referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). TDIU The Veteran is pursuing entitlement to a TDIU, stemming from a March 2012 claim for such benefits. As an initial matter, the Veteran does not meet the preliminary schedular criteria for a TDIU until June 21, 2019. 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 be granted upon a finding that the Veteran's service-connected disabilities have precluded his substantial and gainful employment since March 30, 2012 (the date his claim was received). Where a veteran does not meet the minimum schedular criteria for a TDIU, VA regulations allow for a memorandum to be obtained from the Director of the Compensation and Pension Service regarding the veteran's extraschedular entitlement. 38 C.F.R. § 4.16(a). Such an opinion has not been requested or otherwise obtained in this case. However, there is sufficient evidence upon which to adjudicate this appeal, such that remanding for the identified opinion would only serve to unduly delay the matter. Here, the record reflects that the Veteran has a high school education, absent additional education or training. He was most recently employed as a truck driver until approximately December 2010. See VA Forms 21-8940 dated March 2012, May 2018, and June 2019. According to his last known employer, the Veteran missed approximately three months of work in his last year of employment due to his disability. See September 2012 VA Form 21-4192. No concessions were made to the Veteran by reason of disability; instead, it was reported that he resigned from his position. Id. The Veteran reports that he was forced to resign due to his service-connected back disability and related pain. See VA Forms 21-8940 dated March 2012, May 2018, and June 2019; see also January 2013 lay statement ("[M]y doctor says I [cannot] work"). Specifically, the Veteran has articulated that his disability leaves him unable to sit or stand for prolonged periods of time, drive his truck, or lift large objects. Per his personal assessment, he has been unable to perform full time, competitive work since March 2012. See January 2021 hearing transcript, pgs. 11-13. The Veteran's former employer concurs with this assessment; in a September 2012 lay statement, he classifies the Veteran as a hard worker with significant health problems. Following the Veteran's most recent back surgery, he demonstrated chronic pain, weakness, and related depression. As such, the employer did not believe the Veteran "has the ability to work again . . . I personally would not let him drive any of my trucks [or] work for me again, [nor do I believe] anyone else would hire him . . . in the shape he is in now." The Veteran's history of back pain and related functional impairment is also well-documented in the lay testimony of record. See, e.g., September 2012 buddy statements from W.C., N.G., R.G.; February 2013 buddy statement from L.J.; undated buddy statement from B. and S.D. Collectively, these statements corroborate the Veteran's testimony that his chronic back pain is so severe that he is unable to work, and had to resign from certain extracurricular commitments, as well. As a result, the Veteran was awarded Social Security Administration (SSA) disability benefits, effective December 2010, for assorted back disorders, sciatica, and psychiatric conditions. However, the available medical evidence is less definitive on this point. As relevant to this appeal, the record shows that the Veteran underwent back surgeries in 2010 and 2012; he is currently in receipt of temporary total evaluations for the related periods of convalescence. However, the Veteran's disability did not improve following the 2010 and 2012 surgeries. In December 2011, his private treatment provider reported that he was currently unable to seek or maintain gainful employment due to his chronic pain. As of that time, the Veteran had "tried multiple modalities of therapy" to manage his pain including oral narcotics, muscle relaxants, antidepressants, and a TENS unit, without success. Instead, the Veteran continued to report persistent and radiating pain and numbness, which rendered him unable to stand for prolonged periods of time or ambulate extended distances. This disability picture was unchanged by the 2012 surgery. In a September 2012 private treatment letter, it was noted that the Veteran continued to experience chronic lower back pain which was unresponsive to all forms of conservative therapy following his 2010 procedure. Although an additional surgery was performed in 2012, the Veteran continued to experience chronic pain and discomfort. As a result, he was unable to stand or sit for prolonged periods of time or ambulate extended distances. To manage his symptoms, the Veteran also needed to frequently change from the standing/sitting position: "As a result of the above, he is unable to seek or maintain any gainful employment and is 100% permanently disabled." In February 2013, the private physician provided a replica of the September 2012 opinion. Also in February 2013, the private physician noted the Veteran's ongoing use of medication as treatment for lower back pain. Nonetheless, he remained "100% permanently disabled and unable to seek or maintain any gainful employment." The above findings are corroborated by two private impairment questionnaires provided to VA in November 2012 and July 2013. In the former, the Veteran reports continuous pain which worsens with movement. As a result, he required assistance with many of the tasks of daily living, including bathing, grooming and hygiene, and cooking. As it relates to his employment, the Veteran indicated that he had previously lost several months of work due to his chronic back pain. During his workdays, he would often have to stop and rest. However, the Veteran was unable to return to work following his surgeries, as his disability had become "too painful." In the latter evaluation, the Veteran's private physician reported a "poor" prognosis. Tenderness, atrophy, weakness, and an abnormal gait were reported at that time, resulting in limitation of motion and the inability to stand or walk for prolonged periods of time. In the standard eight-hour workday, the Veteran was only able to sit and stand/walk for up to one hour. It was medically necessary or recommended that the Veteran not sit or stand/walk continuously in a work setting. Accompanying radiculopathy was classified as moderately severe, and the Veteran's pain was found to "constantly" interfere with his attention and concentration. As such, the Veteran would require multiple unscheduled breaks in the average workday, in addition to multiple absences per month. These symptoms and limitations were estimated to have onset in approximately 2006. In contrast, multiple VA examiners have declined to report that the Veteran's disabilities have rendered him as totally occupationally impaired. In March 2017, an examiner concluded that the Veteran was precluded from repetitive heavy lifting, carrying heavy weights, or excess walking, sitting, bending, or stopping due to chronic back pain. However, the Veteran was able to perform light sedentary work in an eight-hour workday, with rest periods and alterations in positioning every 10 to 15 minutes. Similarly, an July 2019 examiner concluded that due to his disabilities, the Veteran was limited in the eight-hour workday as follows: "[N]o repetitive heavy lifting or carrying of greater than 15 pounds; walk 1 miles; stand 4 hour; sit as needed." These assessments are generally supported by multiple VA examinations spanning the period on appeal, in which the examiners document varying functional impairments due to the Veteran's disabilities but do not classify him as totally occupationally impaired thereby. See, e.g., VA examinations dated June 2011, September 2012 (Disability Benefits Questionnaire (DBQ)), September 2012, January 2013, March 2017, January 2018, July 2018, July 2019, and July 2019 (DBQ). Rather, limitations with prolonged standing or walking are most commonly noted. In considering the above, the evidence weighs in favor of this appeal. In offering this finding, the Board is cognizant that there is negative evidence of record. Notably, the claims file contains multiple VA examinations in which varying degrees of functional impairment are reported, but do not otherwise classify the Veteran as unemployable due to his service-connected disabilities. However, these assessments were conducted by one-time service providers rather than experts who have consistently assessed and treated the Veteran for his disabilities. 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); Miller v. Wilkie, 32 Vet. App. 249 (2020). Other relevant considerations, such as the Veteran's academic and occupational histories, are also unaddressed in these assessments. 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"). The positive evidence is far more probative in this case. Taken in combination, private medical records and copious lay statements establish that the Veteran's chronic and severe back pain have required multiple surgeries throughout his lifetime. These interventions were unsuccessful in decreasing or eliminating the Veteran's symptoms, which continue to cause significant functional impairment, including the routine inability to tend to basic hygiene or the activities of daily living without assistance. Moreover, these symptoms have resulted in the Veteran's total occupational impairment. Critically, his lower back pain has rendered him unable to sit or stand for more than 10 minutes at a time, which is an inarguably consequential impact for a lifetime truck driver. In this respect, the findings of the VA examiners simply do not comport with the realities of this profession, as it is impractical to presume that a truck driver would have the capacity to alter positions every 10 to 15 minutes throughout the standard workday. Notably, the Veteran also lacks the training or expertise to solicit employment in a related field, even in a sedentary role. Rather, his longtime medical providerupon repeated evaluation of the Veteran and consideration of his lay statements on this pointhas consistently concluded that he is unable to secure or follow a substantially gainful occupation due to his chronic symptoms. The strength of these opinions is only supported by the former employer's September 2012 lay statement, in which a practiced professional definitively states that the Veteran, in his current condition, is unfit to continue working and was unlikely to be hired elsewhere; the competent and credible testimony of the Veteran's family and friends; and the previous award of SSA disability benefits, primarily due to the Veteran's service-connected back disabilities. 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 as a truck driver and have prevented any subsequent sedentary employment, particularly that commensurate with the Veteran's academic and occupational backgrounds. Rather, the Veteran continues to demonstrate chronic and severe lower back pain which significantly limits his movement and impairs his concentration. 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 March 30, 2012, is hereby granted. Dismissals As to the increased rating appeals, 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. During the January 2021 hearing and in a contemporaneous written statement, the Veteran confirmed that the award of a TDIU from March 30, 2012, would satisfy his appeal. The Veteran has not subsequently deviated from this representation. This letter, from the Veteran's accredited agent, 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 March 30, 2012, 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 appeals. Accordingly, the Board does not have jurisdiction to review the matters and they are dismissed. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 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.