Citation Nr: 1736574	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-17 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida 


THE ISSUES 

1.  Entitlement to service connection for chest pain.

2.  Entitlement to service connection for a right leg disability to include as secondary to service-connected lumbosacral disc disease disability.

3.  Entitlement to service connection for a left leg disability to include as secondary to service-connected lumbosacral disc disease disability.

4.  Entitlement to service connection for a right knee disability to include as secondary to service-connected lumbosacral disc disease disability.

5.  Entitlement to service connection for a left knee disability to include as secondary to service-connected lumbosacral disc disease disability.

6.  Entitlement to service connection for a right foot disability to include as secondary to service-connected lumbosacral disc disease disability.

7.  Entitlement to service connection for a left foot disability to include as secondary to service-connected lumbosacral disc disease disability.

8.  Entitlement to service connection for a right arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities.

9.  Entitlement to service connection for a left arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities.

10.  Entitlement to service connection for brain lesion. 

11.  Entitlement to service connection for a seizure disorder.

12.  Entitlement to service connection for residuals of a head trauma. 

13.  Entitlement to an increased rating for lumbosacral disc disease of L5-S1, rated as 20 percent disabling prior to January 10, 2012, and 40 percent disabling from that date.

14.  Entitlement to an increased rating for cervical spine disability, currently rated as 20 percent disabling.

15.  Entitlement to an increased rating for recurrent dislocation of the right shoulder with paresthesias, rated as 10 percent disabling prior to January 10, 2012, and 20 percent disabling from that date. 

16.  Entitlement to service connection for a psychiatric disorder.

17.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).



REPRESENTATION

Appellant represented by:	Ralph J. Bratch, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from October 1978 to April 1985. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  A January 2009 rating decision denied an increased rating for low back disability.  A March 2010 rating decision increased the rating for cervical spine disability to 20 percent effective June 25 2009; increased the rating for right shoulder disability to 10 percent effective June 25 2009; and denied service connection for right leg, left leg, brain lesion, seizures, head trauma, chest pain, right knee, left knee, right foot, left foot, right arm, and left arm disabilities.  An August 2010 rating decision denied entitlement to a TDIU (which remains on appeal per Rice v. Shinseki, 22 Vet. App. 447 (2009)).  

In January 2012, the Veteran testified before the undersigned at a Travel Board hearing.  

A May 2012 rating decision denied entitlement to service connection for a mental disorder.  The Veteran additionally perfected an appeal to that matter.

In March 2013, the Board remanded this case.

A June 2014 rating decision denied service connection for rotator cuff tendonitis of the left shoulder.  A July 2016 rating decision increased the rating for low back disorder to 40 percent effective January 10, 2012; increased the rating for right shoulder disability to 20 percent effective January 10, 2012; and granted service connection for left and right lower extremity lumbar radiculopathy, each assigned a 10 percent rating effective July 1, 2009.

In July 2016, the RO issued a supplemental statement of the case which addressed the following issues: (1) service connection for right knee disability, to include as secondary to service-connected lumbosacral disc disease disability; 
(2) service connection for left knee disability, to include as secondary to service-connected lumbosacral disc disease disability; (3) service connection for right foot disability, to include as secondary to service-connected lumbosacral disc disease disability; (4) service connection for left foot disability, to include as secondary to service-connected lumbosacral disc disease disability; (5) service connection for right arm disability, to include as secondary to service-connected cervical spine and right shoulder disabilities; (6) service connection for left arm disability, to include as secondary to service-connected cervical spine and right shoulder disabilities; (7) service connection for brain lesion; (8) service connection for seizure disorder; (9) service connection for residuals of a head trauma; (10) entitlement to an evaluation greater than 20 percent disabling prior to January 10, 2012, and greater than 40 percent disabling thereafter for service-connected lumbosacral disc disease of L5-S1; (11) entitlement to an evaluation greater than 20 percent disabling for service-connected cervical spine disability; (12) entitlement to an evaluation greater than 10 percent disabling prior to January 10, 2012, greater than 20 percent disabling thereafter for service-connected recurrent dislocation of the right shoulder with paresthesias; and (13) entitlement to a TDIU.

As noted below, on July 27, 2016, the Veteran's representative withdrew all of the claims other than entitlement to service connection for a psychiatric disorder (mental disorder) and entitlement to a TDIU.

The issues of service connection for a psychiatric disability as well as entitlement to a TDIU prior to January 10, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  On July 27, 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his authorized representative that a withdrawal of the appeal as to issues numbered 1-15, above, is requested.

2.  From January 10, 2012, the Veteran's service-connected disabilities met both the schedular criteria for a TDIU and precluded him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a Substantive Appeal by the Veteran through his representative have been met as to the issues of service connection for chest pain; service connection for a right leg disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for left leg disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right knee disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for a left knee disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right foot disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for left foot disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities; service connection for a left arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities; service connection for brain lesion; service connection for a seizure disorder; service connection for residuals of a head trauma; entitlement to an increased rating for lumbosacral disc disease of L5-S1; entitlement to an increased rating for cervical spine disability, and entitlement to an increased rating for recurrent dislocation of the right shoulder with paresthesias.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).

2.  From January 10, 2012, the Veteran is individually unemployable by reason of his service-connected disabilities.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Issues

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.  The Veteran, through his representative, has withdrawn this appeal as to the issues of service connection for chest pain; service connection for a right leg disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for left leg disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right knee disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for a left knee disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right foot disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for left foot disability to include as secondary to service-connected lumbosacral disc disease disability; service connection for right arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities; service connection for a left arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities; service connection for brain lesion; service connection for a seizure disorder; service connection for residuals of a head trauma; entitlement to an increased rating for lumbosacral disc disease of L5-S1; entitlement to an increased rating for cervical spine disability, and entitlement to an increased rating for recurrent dislocation of the right shoulder with paresthesias.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to the aforementioned issues and the appeal as to those issues dismissed.

TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).  VA interprets the schedular requirements in 38 C.F.R. 4.16(a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling.  See M21-1, Part IV, Subpart ii, Chap. 2, Section F.  Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities.  See M21-1, Part IV, Subpart ii, Chap. 2, Section F, Para h.  

From January 10, 2012, the Veteran meets the schedular criteria for a TDIU.  It is the established policy of VA 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).  Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  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).  The rating board did not refer this case for extraschedular consideration.  The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). 38 C.F.R. § 4.16(b); Moore v. Derwinski, 1 Vet. App. 356 (1991).  The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question is whether the Veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran has submitted two positive opinions supporting a TDIU, one dated in January 2012 from Dr. A.S., and the other dated in February 2012 from a vocational rehabilitation consultant.  Both assessments concluded that the Veteran's lumbosacral spine (and associated radiculopathy), cervical spine disability, and right shoulder disabilities render the Veteran unable to maintain employment.  In considering his disabilities cumulatively along with his employment and educational history (see VA Form 21-8940, dated in February 2012) and with application of the benefit of the doubt, the Board finds that the Veteran is unemployable based on the nature and severity of all of the service-connected disabilities together.  Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted from January 10, 2012.


ORDER

The appeal for service connection for chest pain is dismissed.

The appeal for service connection for a right leg disability to include as secondary to service-connected lumbosacral disc disease disability is dismissed.

The appeal for service connection for left leg disability to include as secondary to service- disability is dismissed.

The appeal for service connection for right foot disability to include as secondary to connected lumbosacral disc disease disability is dismissed.

The appeal for service connection for right knee disability to include as secondary to service-connected lumbosacral disc disease disability is dismissed.

The appeal for service connection for a left knee disability to include as secondary to service-connected lumbosacral disc disease service-connected lumbosacral disc disease disability is dismissed.

The appeal for service connection for left foot disability to include as secondary to service-connected lumbosacral disc disease disability is dismissed.

The appeal for service connection for right arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities is dismissed.

The appeal for service connection for a left arm disability to include as secondary to service-connected cervical spine and right shoulder disabilities is dismissed.  

The appeal for service connection for brain lesion is dismissed.

The appeal for service connection for a seizure disorder is dismissed.  

The appeal for service connection for residuals of a head trauma is dismissed  

The appeal for an increased rating for lumbosacral disc disease of L5-S1 is dismissed.  

The appeal for an increased rating for cervical spine disability is dismissed.  

The appeal for an increased rating for recurrent dislocation of the right shoulder with paresthesias is dismissed.

Entitlement to a TDIU from January 10, 2012 is granted, subject to the law and regulations governing the payment of monetary benefits.


REMAND

With regard to the claim of service connection for a psychiatric disorder, a March 1984 inservice evaluation noted that the Veteran reported having depression or excessive worry as well as frequent trouble sleeping.  The Veteran expressed that he had been under stress, that he was frustrated with the military, and that he felt trapped.  He reported having hallucinations as well as fleeting thoughts of hurting people.  The Veteran was assessed by an examiner as being angry.  VA outpatient records dated from 1989 to the early 1990's show that the Veteran was treated for a history of bipolar disorder, multiple substance abuse, and alcohol abuse.  In April 2012, the Veteran was afforded a VA examination.  However, that examiner found no current psychiatric disability, but also noted that the Veteran had never been diagnosed with a psychiatric disorder.  Pertinent inservice findings were not addressed.  The history noted by the examiner is inaccurate and inconsistent with the record.  As such, the Veteran should be afforded a new VA examination. 

With regard to entitlement to a TDIU prior to January 10, 2012, as noted, the Veteran has a combined 70 percent rating from January 10, 2012.  The Veteran's representative asserts that an extraschedular rating for a TDIU be granted prior to January 2012, and then a schedular TDIU from that date (which was granted above).  The representative has variously indicated that the onset date should be January 2006 or July 2009.  The adjudication of the service connection issue above may impact the TDIU issue and should be resolved first.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability.  Any indicated tests, if indicated, should be accomplished.  The examiner should review the record prior to examination.  The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current psychiatric disorder had its clinical onset during service, that a psychosis was manifest within a year of service separation, or that a psychiatric disorder present is related to any in-service disease, event, or injury.  The examiner should address the pertinent inservice findings as well as the post-service diagnosis of a bipolar disorder.  The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

2.  Review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

3.  Readjudicate the claim of service connection for a psychiatric disorder on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

4.  If the Veteran is not entitled to a schedular TDIU as of January 2006 taking into account the outcome of the claim for service connection for a psychiatric disorder, the AOJ should refer the Veteran's claim for a TDIU prior to January 10, 2012 under 38 C.F.R. § 4.16(b) to the appropriate department officials for extraschedular consideration for the that time period.  If entitlement to a TDIU for the time period prior to January 10, 2012 is not granted, the Veteran should be provided a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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