Citation Nr: 22017488 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-27 741 DATE: March 25, 2022 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) is granted. Entitlement to an effective date prior to March 27, 2014, for the grant of a 50 percent rating for anxiety is dismissed without prejudice. Entitlement to an effective date prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the right upper extremity is dismissed without prejudice. Entitlement to an effective date, prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the left upper extremity is dismissed without prejudice. Entitlement to an initial rating in excess of 30 percent prior to March 27, 2014, and in excess of 50 percent from that date, for service-connected anxiety is dismissed without prejudice. Entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent from that date, for left upper extremity peripheral neuropathy is dismissed without prejudice. Entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 30 percent from that date, for right upper extremity peripheral neuropathy is dismissed without prejudice. Entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for left lower extremity peripheral neuropathy is dismissed without prejudice. Entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for right lower extremity peripheral neuropathy is dismissed without prejudice. Entitlement to a rating in excess of 20 percent for diabetes is dismissed without prejudice. The application to reopen the claim for service connection for a back disorder is dismissed without prejudice. Entitlement to service connection for bilateral hearing loss is dismissed without prejudice. Entitlement to service connection for basal cell carcinoma of the left eyelid is dismissed without prejudice. Entitlement to service connection for a skin disorder is dismissed without prejudice. Entitlement to service connection for PTSD is dismissed without prejudice. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are sufficient to cause him to be unemployable. 2. At his Board hearing in July 2020, the Veteran testified that as long as he is granted a full grant of TDIU, that he wished to withdraw his claims to: entitlement to an effective date prior to March 27, 2014 for the grant of a 50 percent rating for anxiety, entitlement to an earlier effective date prior to May 8, 2017 for the grant of service connection for peripheral neuropathy of the right upper extremity, entitlement to an earlier effective date prior to May 8, 2017 for the grant of service connection for peripheral neuropathy of the left upper extremity, entitlement to an initial rating in excess of 30 percent prior to March 27, 2014, and in excess of 50 percent from that date, for service-connected anxiety, entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent from that date, for left upper extremity peripheral neuropathy, entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 30 percent from that date, for right upper extremity peripheral neuropathy, entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for left lower extremity peripheral neuropathy, entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for right lower extremity peripheral neuropathy, entitlement to a rating in excess of 20 percent for diabetes, entitlement to service connection for a back disorder, entitlement to service connection for bilateral hearing loss, entitlement to service connection for basal cell carcinoma of the left eyelid, entitlement to service connection for a skin disorder, and entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for withdrawal of entitlement to an effective date prior to March 27, 2014, for the grant of a 50 percent rating for anxiety have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of entitlement to an earlier effective date prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of entitlement to an earlier effective date, prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of entitlement to an initial rating in excess of 30 percent prior to March 27, 2014, and in excess of 50 percent from that date, for service-connected anxiety have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent from that date, for left upper extremity peripheral neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 30 percent from that date, for right upper extremity peripheral neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 8. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 9. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent prior to May 8, 2017, and in excess of 20 percent from that date for right lower extremity peripheral neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 10. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for diabetes have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 11. The criteria for withdrawal of entitlement to service connection for a back disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 12. The criteria for withdrawal of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 13. The criteria for withdrawal of entitlement to service connection for basal cell carcinoma of the left eyelid have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 14. The criteria for withdrawal of entitlement to service connection for a skin disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 15. The criteria for withdrawal of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1975. The Veteran testified at a hearing before the undersigned in July 2020. A transcript of the hearing is of record. The Board notes that a March 2020 rating decision increased the Veteran's ratings for peripheral neuropathy in the extremities. In response, he submitted a Form 10182. However, given the fact that the Veteran testified on the issues at his hearing, the Board will not accept that submission as an opt-in to the Appeals Modernization Act procedures and address the issues in this decision. TDIU The Veteran and his representative argue that his service-connected anxiety, neuropathy, diabetes, and left knee disability, render him unemployable. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Board determines that TDIU should be granted for the period on appeal. As an initial matter, the Board notes that the Veteran did not meet the schedular requirements for TDIU during the period on appeal. Specifically, the Veteran is service connected for anxiety, rated at 30 percent from November 23, 2011, and at 50 percent from March 27, 2014; peripheral neuropathy of the right upper extremity, rated at 10 percent from May 8, 2017 and 30 percent from January 8, 2020, diabetes rated at 20 percent from December 22, 2004, peripheral neuropathy of the left upper extremity, rated at 10 percent from May 8, 2017 and 20 percent from January 8, 2020, peripheral neuropathy of the right and left lower extremities, each rated at 10 percent from April 22, 2011, and 20 percent from May 8, 2017, left knee DJD rated at 10 percent from June 1, 2001, bilateral eye disabilities rated at 10 percent from November 23, 2011, left knee instability rated at 20 percent from October 21, 2009 and 10 percent from July 20, 2015, and two noncompensable scars of the left knee and right arm. Under his current ratings, therefore, the Veteran's current combined rating is 70 percent from November 23, 2011. Because no service-connected disability has been rated at 40 percent or more before March 27, 2014, the Veteran only meets the schedular criteria from that date. Nevertheless, consideration for extraschedular TDIU is warranted as the evidence demonstrates that the Veteran was unable to obtain gainful employment during the appeal period. Post service, the Veteran has not been gainfully employed since leaving active duty service in 1975. Indeed, the Veteran has not had substantially gainful employment since the late 1980s, when he worked as a security guard full time for two years. Next, the Board places significant probative value on the assertions from the Veteran, especially at his July 2020 hearing, that the combined effects of his service-connected disabilities, including his anxiety and sleep impairments, his difficulties concentrating, walking, sitting, standing, and gripping, prevent him from working. In a January 2015 note, the Veteran reports an inability to get through the introduction of a book, as well as mood symptoms and neuropathy, that results in his inability to grip objects. At his July 2020 Board hearing, the Veteran recounted his left leg giving out, which led to low back problems, preventing him from going back to work. Indeed, the Veteran still cannot kneel or flex his knee. In addition, he attested that his neuropathy precludes any sensation in the feet, and reported frequent dropping of objects with his hands. Thus, the Veteran's competent lay statements show significant functional impairment during the appeal period that, in the Board's view, causes unemployability. Moreover, the Board also places significant probative value on the opinions from the Veteran's medical providers which indicate that the Veteran's service-connected disabilities significantly interfered with his ability to work. Specifically, the Veteran's work history indicates work for just over two years after service, in a kitchen commissary, a bakery, and as a security guard all of which involve substantial standing, as well as use of the hands. The Veteran's upper and lower extremity symptoms, even in their severity at that time, would have interfered with the Veteran's usual occupation. Indeed, according to a July 2014 note, the Veteran can barely step up a step with his left knee, which would preclude physical jobs involving extended standing. In an August 2017 record, the Veteran reports left knee popping, locking, and buckling, as well as having fallen twice due to left knee instability. The Veteran's August 2017 C&P examiner noted that heavy lifting, kneeling, and climbing would not be advised; at this examination, the Veteran himself noted inability to kneel because of his left knee, lift objects because of tingling in the hands, and severe tingling and burning in his feet generally restricting his activity. In combination with his physical symptoms, the Veteran's service connected anxiety causes focus and concentration problems, further interfering with employment. Notes dated October 2012, July 2013, and July 2014 indicate that without medication, the Veteran is often limited to about two hours of sleep per night. The Veteran noted in a July 2013 note that without medication such as Zoloft, he is prone to irritability, explosive anger, and worsened sleep symptoms. An August 2015 note shows panic attacks 2-3 times a week at the most, or at least, 2-3 times a month. In a July 2017, the Veteran noted feeling more irritable after discontinuing Xanax. Furthermore, in August 2019, the Veteran reported worsening mood and focus during the day, due to sleep problems caused by anxiety and pain. The Board finds that during the period on appeal, the Veteran's unique set of symptoms has been sufficient to preclude even sedentary employment. See 20 C.F.R. § 404.1567(a). In making this determination, the Board is aware that, generally, the Board does not assign an extraschedular evaluation in the first instance under 38 C.F.R. § 4.16(b). However, the Board notes that 38 C.F.R. § 4.16(b) merely states that rating boards "should" refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. In any event, remanding for this evaluation would serve only to unnecessarily delay the Veteran's claim. See Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (The Board may exercise authority with regard to questions or issues not previously addressed by an AOJ in the first instance if it determines that there would be no prejudice to the claimant); See also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Lastly, in finding in favor of the Veteran's claim, the Board notes evidence, specifically the June 2013 VA examiner's report, and the December 2013 SSA determination, and January 2020 VA examiner's report indicating that the Veteran might be employable despite service-connected disabilities. Again, the question in this case is whether the Veteran could secure or follow "substantially gainful" employment, not whether he was totally precluded from any work. As such, the Board finds that the clinical evidence and opinions from the VA examiners and the Veteran's private treating medical providers, in conjunction with the credible statements from the Veteran places the question of substantially gainful employment in equipoise, and the Board has resolved any doubt in the Veteran's favor. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, a TDIU rating is warranted. Given the unique facts of the present case, the Board has determined that consideration of the Veteran's extraschedular TDIU claim in the first instance under § 4.16(b) is appropriate. Given that the Board is granting the full benefits on appeal for which the Board has jurisdiction, there is no prejudice to the Veteran in the Board's consideration of this issue in the first instance. Accordingly, entitlement to TDIU is granted for the period on appeal. 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. 1. Entitlement to an effective date prior to March 27, 2014, for the grant of a 50 percent rating for anxiety 2. Entitlement to an earlier effective date prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the right upper extremity 3. Entitlement to an earlier effective date, prior to May 8, 2017, for the grant of service connection for peripheral neuropathy of the left upper extremity 4. Entitlement to an initial rating in excess of 30 percent prior to March 27, 2014, and in excess of 50 percent from that date, for service-connected anxiety 5. Entitlement to increased ratings for peripheral neuropathy in the extremities 6. Entitlement to a rating in excess of 20 percent for diabetes 7. The application to reopen the claim for service connection for a back disorder 8. Entitlement to service connection for bilateral hearing loss 9. Entitlement to service connection for basal cell carcinoma of the left eyelid 10. Entitlement to service connection for a skin disorder 11. Entitlement to service connection for PTSD 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. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant testified at a hearing before the undersigned Veterans' Law Judge and requested that if his TDIU claim is granted in full, that his claims be withdrawn for entitlement to an effective date prior to March 27, 2014 for the grant of a 50 percent rating for anxiety, entitlement to an earlier effective date prior to May 8, 2017 for the grant of service connection for peripheral neuropathy of the right upper extremity, entitlement to an earlier effective date, prior to May 8, 2017 for the grant of service connection for peripheral neuropathy of the left upper extremity, entitlement to increased ratings for anxiety, entitlement to increased ratings for peripheral neuropathy in the upper and lower extremities, entitlement to a rating in excess of 20 percent for diabetes, entitlement to service connection for a back disorder, entitlement to service connection for bilateral hearing loss, entitlement to service connection for basal cell carcinoma of the left eyelid, entitlement to service connection for a skin disorder, and entitlement to service connection for PTSD. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia