Citation Nr: 1000299 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 95-36 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service connected left ankle disability. 2. Entitlement to service connection for a right ankle disability, to include as secondary to service connected left ankle disability. 3. Entitlement to service connection for diabetes, to include as secondary to service connected left ankle disability. 4. Entitlement to service connection for an umbilical and hiatal hernia, to include as secondary to service connected left ankle disability. 5. Entitlement to service connection for periodontal disease for purposes of VA compensation. 6. Entitlement to an increased rating for left Achilles tendonitis with degenerative joint disease of the left ankle, currently rated as 20 percent disabling. 7. Entitlement to an initial rating in excess of 50 percent for major depression and generalized anxiety disorder. 8. Entitlement to an effective date earlier than July 22, 2003, for a grant of service connection for gastritis. 9. Whether a timely notice of disagreement was filed with respect to the denial of service connection for a left inguinal hernia by a March 1981 rating decision. 10. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to February 1981. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 1995 rating decision by the VA Regional Office in New Orleans, Louisiana, (RO) that denied the Veteran's claim for a rating in excess of 20 percent for service-connected left ankle disability. This claim was remanded by the Board in May 1999 and June 2002 and is now ready for appellate review. Appeals with respect to multiple additional issues, as listed on the title page, have been perfected to the Board subsequent to the June 2002 remand. In December 1998, a hearing was held before a Veterans Law Judge who retired from the Board, and the Veteran was provided with a hearing before the undersigned Acting Veteran's Law Judge in November 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is unemployable by reason of his service- connected disabilities. 2. In November 2009, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that if a TDIU were award, all of his remaining claims would be withdrawn. CONCLUSION OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2009). 2. The criteria for withdrawal of the appeal for entitlement to nonservice-connected pension benefits by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the Board's grant of a TDIU, which represents a complete grant of the Veteran's appeal, no discussion of VA's duty to notify or assist is necessary. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (emphasis added). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Although neither the United States Code nor the Code of Federal Regulations offers a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21- 1, Part VI, para. 7.09(a)(7) defines that term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Here, the combined disability rating for the Veteran's service-connected disabilities is 72 percent. In addition, his psychiatric disability is rated as 50 percent disabling The Veteran's disabilities thus satisfy the requirements set forth in 38 C.F.R. § 4.16. In numerous statements in support of this claim and in written argument submitted on his behalf, the Veteran and his representative have asserted that the combined effects of the Veteran service-connected disabilities are so overwhelming that he is unemployable and thus entitled to a grant of a TDIU. The Board is charged with the duty to assess the credibility and weight given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this capacity, the Board finds that the Veteran's statements and testimony about his ability to obtain and maintain employment to be credible as it is consistent with the psychiatric disability evidence of record, including the GAF scores assigned for his service- connected psychiatric disability, which generally range in the 40s, and which is consistent with an inability to work due to that condition. In addition, these statements are consistent with the medical evidence showing the severity of his chronic erosive gastritis and left Achilles tendonitis with degenerative joint disease of the left ankle. Thus, resolving all reasonable doubt in his favor, the Board concludes that a grant of a TDIU is warranted. Remaining claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). 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 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in a November 2009 statement, the Veteran indicated that if a TDIU were granted, his appeal would be fully satisfied and he would withdraw his remaining pending claims, numbered one through nine no the title page. In ligt of the Board grant of a TDIU, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review his remaining claims and they are dismissed. ORDER A total disability rating based on individual unemployability due to the Veteran's service-connected disabilities is granted, subject to the applicable criteria governing the payment of monetary benefits. The Veteran's claims numbered one to nine on the title page are dismissed. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs