Case 23067994

MICHAEL E. KILCOYNE · 2023 · Case ID: 23067994

GRANTED

Summary

The veteran, who served in the Army from February 1985 to February 1988 and again from August 2009 to February 2010, with subsequent service in the Alabama Army National Guard and Air Force Reserve, appeals the denial of service connection for several conditions and seeks entitlement to Total Disability based on Individual Unemployability (TDIU). The veteran's initial claim was filed on March 2, 2012. Following a previous remand, service connection was granted for sinusitis, allergic rhinitis, GERD, a psychiatric disability, erectile dysfunction, hypertension, and sleep apnea, making these issues no longer before the Board. The primary focus of this appeal is the TDIU claim, which the veteran argues is warranted due to the combined effects of his service-connected lumbar spine disability, bilateral knee disabilities, and psychiatric disorder. The Board reviewed the veteran's service records, a September 2012 Social Security Administration decision noting limitations to sedentary duties and concentration issues, and a July 2013 VA psychiatric examination diagnosing generalized anxiety disorder. The Board found that the veteran's combined service-connected disabilities, including mental health symptoms limiting concentration and motivation, severe mobility limitations from back and knee issues, and gastrointestinal symptoms, rendered him unable to sustain substantially gainful employment from March 2, 2012. Consequently, TDIU benefits were granted effective March 2, 2012. The veteran's representative indicated that the TDIU award would satisfy the appeal, leading to the withdrawal and dismissal of the appeals concerning the ratings for lumbar spine, radiculopathy, and knee osteoarthritis.

Rationale

Veteran had combined 90% rating from March 2, 2012 to January 28, 2015, and 100% from January 29, 2015.; GERD and psychiatric disorder rated higher than 40%.; SSA decision noted limitations to sedentary duties and concentration issues.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

20-21 474

Full Decision Text

Citation Nr: 23067994
Decision Date: 12/28/23 Archive Date: 12/28/23

DOCKET NO. 20-21 474
DATE: December 28, 2023

ORDER

Subject to the law and regulations governing payment of monetary benefits, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted from March 2, 2012.

Entitlement to an initial rating in excess of 10 percent prior to August 8, 2017, in excess of 20 percent from August 8, 2017 to August 29, 2022, and in excess of 40 percent from August 30, 2022, for degenerative disc disease, lumbar spine, is dismissed.

Entitlement to an award of a separate compensable rating prior to August 8, 2017, and entitlement to a rating in excess of 20 percent from August 8, 2017 to August 29, 2022, and in excess of 40 percent from August 30, 2022, for radiculopathy, left lower extremity, associated with the lumbar spine disability, is dismissed.

Entitlement to an award of a separate compensable rating prior to August 8, 2017, and entitlement to a rating in excess of 20 percent from August 8, 2017 to August 29, 2022, and in excess of 40 percent from August 30, 2022, for radiculopathy, right lower extremity, associated with the lumbar spine disability, is dismissed.

Entitlement to an initial compensable rating prior to March 2, 2012, and in excess of 10 percent thereafter, for left knee osteoarthritis is dismissed.

Entitlement to an initial compensable rating prior to March 2, 2012, and in excess of 10 percent thereafter, for right knee osteoarthritis is dismissed.

FINDINGS OF FACT

1. The Veteran's claim for service connection for his lumbar spine disability, radiculopathy, bilateral knee disabilities, gastroesophageal reflux disease, hypertension, psychiatric disorder, sinusitis, and hypertension were filed on March 2, 2012.

2. The evidence of record supports a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment from March 2, 2012.

3. The Veteran's representative filed a brief in December 2023 indicating that the award of a TDIU dating to March 2, 2012 would satisfy the Veteran's appeals; thus, by virtue of the decision herein, the appeals as to the ratings assigned for the lumbar spine, left and right lower extremity radiculopathy, and left and right knee osteoarthritis have been withdrawn.

CONCLUSIONS OF LAW

1. The criteria for TDIU are met effective March 2, 2012. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16.

2. The criteria for withdrawal of the appeal of the rating assigned for degenerative disc disease, lumbar spine, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria for withdrawal of the appeal of the rating assigned for radiculopathy, left lower extremity, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

4. The criteria for withdrawal of the appeal of the rating assigned for radiculopathy, right lower extremity, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

5. The criteria for withdrawal of the appeal of the rating assigned for left knee osteoarthritis are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

6. The criteria for withdrawal of the appeal of the rating assigned for right knee osteoarthritis are 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 February 1985 to February 1988 and from August 2009 to February 2010. He has also served in the Alabama Army National Guard and the Air Force Reserve.

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2021
19.55.

6. The criteria for withdrawal of the appeal of the rating assigned for right knee osteoarthritis are 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 February 1985 to February 1988 and from August 2009 to February 2010. He has also served in the Alabama Army National Guard and the Air Force Reserve.

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record.

In May 2022, the Board issued a decision denying the Veteran's appeal of entitlement to service connection for diverticulosis. The remaining issues on appeal were remanded. Following the remand development, service connection was awarded for sinusitis, allergic rhinitis, GERD, a psychiatric disability, erectile dysfunction, hypertension, and sleep apnea. These issues are, therefore, no longer before the Board. The disability ratings and TDIU claims have now returned to the Board.

Entitlement to a TDIU

Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. 38 C.F.R. § 4.16(a). Throughout the period of this claim and appeal, pending since March 2, 2012, the Veteran has had a combined 90 percent rating from March 2, 2012 to January 28, 2015, and a 100 percent rating from January 29, 2015 to the present. The Veteran's GERD, and psychiatric disorder, are both rated higher than 40 percent. Thus, for the period of time for which the Veteran is not in receipt of a 100 percent rating, the criteria are met for schedular consideration of a TDIU.

While the Veteran did not file a formal claim for TDIU until August 2014, because he is claiming to be unemployable due to the combined effect of all of his service-connected disabilities, and because the ratings for several of these disabilities were on appeal before the Board, the TDIU claim is considered part of the March 2, 2012 claim. Rice v. Shinseki, 22 Vet. App. 447 (2009).

VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner").

The Board notes that the Veteran, by way of his representative, has primarily argued that the impact of the Veteran's lumbar spine disability, his bilateral knee disabilities, and his psychiatric disorder have rendered him unemployable throughout the period on appeal.

A review of the record shows that the Veteran
447, 452 (2009).

A review of the record shows that the Veteran was medically retired from service effective January 28, 2012. The service records show this as primarily due to limited mobility due to his back and lower extremity disabilities. A September 2012 Social Security Administration (SSA) decision shows the Veteran was determined to have last participated in substantially gainful activity in February 2011. This was due to excessive sick time and limited duty. SSA deemed this to be due to the Veteran's degenerative disk disease of the lumbar spine, bilateral knee disabilities, and depression. The SSA findings suggest the Veteran may be limited to sedentary duties only, but that due to his psychiatric disability, he is also unable to sustain concentration and attention for two-hour periods.

At the Veteran's July 2013 VA examination for his psychiatric disability, a generalized anxiety disorder was diagnosed. The Veteran described his symptoms as including depression; not feeling like doing anything; not having the will to get up; not resting well; and feeling anxious. He reported that these symptoms happen "pretty much constantly."

The record shows the Veteran, towards the end of his career, had to take frequent leave, was put on limited duty and was also seen in the emergency room due to his continuous lumbar spine symptoms. The radiating pain into his legs was shown at that time as well. With regard to the knees, the Board recognizes the rating assigned is for the Veteran's bilateral knee pain. Moreover, the Veteran's GERD symptoms were present, as well as several indications of trouble sleeping.

Thus, the Veteran experienced mental disability symptoms limiting his concentration, motivation and drive, coupled with physical symptoms severely limiting his mobility, and gastrointestinal symptoms. When examined as a whole in the light most favorable to the Veteran, the Board finds the combined effect of the Veteran's service-connected disabilities would prevent the Veteran from obtaining and sustaining substantially gainful employment from March 2, 2012. The assignment of TDIU benefits is, therefore, warranted effective March 2, 2012, the date of the Veteran's claim.

Increased Rating

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. Id.

In December 2023, the Veteran's representative submitted a statement in support of the Veteran's claims. The representative remarked that with the award of a TDIU effective March 2, 2012, the Veteran's appeal would be satisfied. Given the award of the TDIU effective March 2, 2012 in this decision, the Board finds the Veteran, by way of his representative, has effectively withdrawn the appeals of the ratings assigned for the lumbar spine, left and right leg radiculopathy, and left and right knee. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, this aspect of the appeal is dismissed.

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Adamson, 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.

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