Citation Nr: 22016595 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 10-03 053 DATE: March 22, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. The appeal for multiple claims, including (a) the claims for entitlement to an effective date prior to April 13, 2006 for the grants of service connection: for (i) a neck disability, (ii) tinnitus, (iii) a left knee disability, (iv) a low back disability, and (v) right ear hearing loss; (b) the claims for entitlement to service connection for: (vi) left ear hearing loss, (vii) costochondritis, (viii) a heart disorder, (ix) hypertension (also claimed as cardio disease), (x) irritable bowel syndrome, (xi) a menstrual disorder (claimed as dysmenorrhea, decreased libido), (xii) a sinus disorder, (xiii) rhinitis, (xiv) a vaginal disorder (claimed as vaginal dryness), (xv) fibromyalgia, (xvi) headaches, (xvii) a left hip disorder, and (xviii) a right hip disorder; and the (c) claims for initial increased ratings including for: (xix) a low back disability rating higher than 10 percent prior to December 17, 2019, and higher than 20 percent thereafter, (xx) a compensable disability rating for right ear hearing loss, and (xxi) a neck disability higher than 20 percent is dismissed. The appeal for multiple claims, including the (c) claims for service connection for (xxii) a thyroid disorder, (xxiii) a herpes virus, (xxiv) a skin disorder, (xxv) a respiratory disorder (claimed as mycoplasma pneumoniae, pneumonia, bronchitis), (xxvi) a decreased autoimmune system, (xxvii) anemia, and (xxviii) chronic fatigue syndrome; and (d) the claim to reopen (xxix) the claim for service connection for left hand numbness is dismissed. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, her service-connected disability renders her unable to secure or follow a substantially gainful occupation 2. On August 5, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant and her attorney that a withdrawal of this appeal for multiple claims, including (a) the claims for entitlement to an effective date prior to April 13, 2006 for the grants of service connection: for (i) a neck disability, (ii) tinnitus, (iii) a left knee disability, (iv) a low back disability, and (v) right ear hearing loss; (b) the claims for entitlement to service connection for: (vi) left ear hearing loss, (vii) costochondritis, (viii) a heart disorder, (ix) hypertension, (x) irritable bowel syndrome, (xi) a menstrual disorder, (xii) a sinus disorder, (xiii) rhinitis, (xiv) a vaginal disorder, (xv) fibromyalgia, (xvi) headaches, (xvii) a left hip disorder, and (xviii) a right hip disorder, to include degenerative arthritis; and the (c) claims for initial increased ratings including for: (xix) a low back disability rating higher than 10 percent prior to December 17, 2019, and higher than 20 percent thereafter, (xx) a compensable disability rating for right ear hearing loss, and (xxi) a neck disability higher than 20 percent is requested. 3. On August 5, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant and her attorney that a withdrawal of this appeal for multiple claims, including the (c) claims for service connection for (xxii) a thyroid disorder, (xxiii) a herpes virus, (xxiv) a skin disorder, (xxv) a respiratory disorder, (xxvi) a decreased autoimmune system, (xxvii) anemia, and (xxviii) chronic fatigue syndrome; and (d) the claim to reopen (xxix) the claim for service connection for left hand numbness is requested. CONCLUSIONS OF LAW 1. Giving the Veteran the benefit of the doubt, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. 2. The criteria for withdrawal of multiple claims, including (a) the claims for entitlement to an effective date prior to April 13, 2006 for the grants of service connection: for (i) a neck disability, (ii) tinnitus, (iii) a left knee disability, (iv) a low back disability, and (v) right ear hearing loss; (b) the claims for entitlement to service connection for: (vi) left ear hearing loss, (vii) costochondritis, (viii) a heart disorder, (ix) hypertension, (x) irritable bowel syndrome, (xi) a menstrual disorder, (xii) a sinus disorder, (xiii) rhinitis, (xiv) a vaginal disorder, (xv) fibromyalgia, (xvi) headaches, (xvii) a left hip disorder, and (xviii) a right hip disorder, to include degenerative arthritis; and the (c) claims for initial increased ratings including for: (xix) a low back disability rating higher than 10 percent prior to December 17, 2019, and higher than 20 percent thereafter, (xx) a compensable disability rating for right ear hearing loss, and (xxi) a neck disability higher than 20 percent have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of multiple claims, including (c) claims for service connection for (xxii) a thyroid disorder, (xxiii) a herpes virus, (xxiv) a skin disorder, (xxv) a respiratory disorder, (xxvi) a decreased autoimmune system, (xxvii) anemia, and (xxviii) chronic fatigue syndrome; and (d) the claim to reopen (xxix) the claim for service connection for left hand numbness have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to October 1986 and January 1991 to June 1991. This matter is on appeal from multiple rating decisions. The earlier effective date claims and the claims for increased ratings are on appeal from a November 2018 rating decision wherein the RO granted service connection for a neck disability, tinnitus, low back disability, and right ear hearing loss. The claims for service connection for costochondritis and left ear hearing loss are on appeal from a July 2007 rating decision. The other service connection claims are on appeal from an October 2018 rating decision. The Board notes that a January 2020 rating decision under the AMA also addressed TDIU and an increased rating for the left knee, but that such appeal stream is not currently before the Board. The TDIU claim under the legacy appeal stream; however, is considered to be before the Board under Rice (and is addressed herein). The Board also notes that the October 2018 rating decision also addressed other issues of service connection for which the Veteran had filed a September 2019 notice of disagreement. These claims have since been granted service connection, which were full grants of such appeals (including for an acquired psychiatric disorder, dry eye, dry mouth, ovarian cyst, and bilateral lower extremities radiculopathy in February 2020 and March 2021 rating decisions). These matters are not before the Board. For the sake of clarity, the Board further notes that the October 2018 rating decision also granted service connection for a left knee disability and although the Veteran filed a notice of disagreement as to the effective date of that disability, she did not file a notice of disagreement as to the rating granted. In April 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. The Board notes that there was no hearing testimony obtained as to the claims for (c) entitlement to service connection for (xxii) a thyroid disorder, (xxiii) a herpes virus, (xxiv) a skin disorder, (xxv) a respiratory disorder, (xxvi) a decreased autoimmune system, (xxvii) anemia, and (xxviii) chronic fatigue syndrome; and (d) the claim to reopen (xxix) the claim for service connection for left hand numbness. No testimony was provided because these issues were not perfected to the Board, as no statement of the case (SOC) has been issued for those claims following the September 2019 notice of disagreement and thus no substantive appeal was filed. For the sake of clarity, the Board has separated the dismissal of these unperfected issues from the dismissal of those issues that have been perfected to the Board. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities have rendered her unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran is service connected for multiple disabilities, including an acquired psychiatric disorder (70 percent), neck disability (20 percent), low back disability (20 percent), left upper extremity radiculopathy (20 percent), left knee disability (10 percent), tinnitus (10 percent), dry eyes syndrome (10 percent), left lower extremity radiculopathy (10 percent), right lower extremity radiculopathy (10 percent), and noncompensable right ear hearing loss, dry mouth, and left ovarian cyst. She has a combined 80 percent disability rating from July 21, 2017, and combined 90 percent disability rating from December 17, 2019. She meets the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) from July 21, 2017. In her TDIU applications, the Veteran reported that she stopped working in 2019. In a November 2019 TDIU application, she claimed her back injury residuals affected her ability to perform physical tasks. Prior to 2019, the Veteran appears to have been employed. A December 2018 Social Security Administration (SSA) determination found that the Veteran was not disabled. November 2018 SSA medical records, such as a November 2018 psychological evaluation from Dr. F.S. indicated that the Veteran was working almost full time. Dr. F.S. determined that the Veteran demonstrated that she could sustain work functioning if so motivated but may have some difficulty coping with stress due to a combination of physical and psychological issues. Dr. F.S. found mild psychological impairment, with occasional disruptions. Dr. F.S. also noted a past work history as a home health aide, aesthetician, medical assistant, and police officer. An October 2018 SSA psychological evaluation by Dr. A.G. indicated that the Veteran had left her job and business in February 2013 to take care of her mother until her mother's death in January 2018. During the August 2021 Board hearing, the Veteran again reported that she had stopped working as a medical assistant in 2019. She reported that her neck, back, and knee were major issues. Also, her the tinnitus interfered with me being able to hear heart beats. Additionally, she had trouble with the processes of the job and anxiety going to work due to being watched. She also claimed memory loss problems and dealing with copious notes and message binders because of an inability to retain information. In a January 2020 private medical opinion letter, Dr. C.W. reported that the Veteran has worked as a triage nurse/certified medial assistant for 15 years, which included assisting with transfers, stooping, and engaging in prolonged standing activities with certain procedures. She indicated that the Veteran's "cervical condition would certainly cause worsening cervical pain and disability with responsibilities required to successfully perform her job responsibilities. It is my opinion...medically disabled and unable to engage in any substantially gainful employment." In a June 2020 VA mental health examination, the VA examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran last worked in May 2019. The Board finds that there is evidence both supportive and not supportive to the Veteran's claim. Importantly, the determination of whether at TDIU is warranted is a legal one, not a medical one. The realistic chances of the Veteran finding and maintaining substantially gainful employment due to her service-connected disabilities is low. Given the Veteran's physical and psychological limitations, in conjunction with her background (including educational history and past employment), and giving her the benefit of the doubt, the Board finds that her service-connected disabilities preclude most employment. 2. Withdrawal of multiple claims, including (a) the claims for entitlement to an effective date prior to April 13, 2006 for the grants of service connection: for (i) a neck disability, (ii) tinnitus, (iii) a left knee disability, (iv) a low back disability, and (v) right ear hearing loss; (b) the claims for entitlement to service connection for: (vi) left ear hearing loss, (vii) costochondritis, (viii) a heart disorder, (ix) hypertension, (x) irritable bowel syndrome, (xi) a menstrual disorder, (xii) a sinus disorder, (xiii) rhinitis, (xiv) a vaginal disorder, (xv) fibromyalgia, (xvi) headaches, (xvii) a left hip disorder, and (xviii) a right hip disorder, to include degenerative arthritis; and the (c) claims for initial increased ratings including for: (xix) a low back disability rating higher than 10 percent prior to December 17, 2019, and higher than 20 percent thereafter, (xx) a compensable disability rating for right ear hearing loss, and (xxi) a neck disability higher than 20 percent. 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. 38 C.F.R. § 20.205. In the present case, the appellant has withdrawn this appeal and indicated in an August 2021 correspondence that a grant of a TDIU (granted above) would satisfy the appellant's appeal as to any remaining issues pending for adjudication. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the claims noted in this section of the decision are dismissed. 3. Withdrawal of multiple claims, including (c) claims for service connection for (xxii) a thyroid disorder, (xxiii) a herpes virus, (xxiv) a skin disorder, (xxv) a respiratory disorder, (xxvi) a decreased autoimmune system, (xxvii) anemia, and (xxviii) chronic fatigue syndrome; and (d) the claim to reopen (xxix) the claim for service connection for left hand numbness. As previously noted, 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. 38 C.F.R. § 20.205. In this case, as noted above, the appellant has withdrawn this appeal in an August 2021 correspondence when they indicated that a grant of a TDIU (granted in the decision above) would satisfy the appellant's appeal as to any remaining issues pending for adjudication. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the appeal for the claims noted in this section of this decision and the appeal of these claims is dismissed. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.