Citation Nr: 1315414	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  09-15 039	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a disability rating in excess of 40 percent for prostate cancer.

2.  Entitlement to a compensable disability rating for bilateral hearing loss.   

3.  Entitlement to a compensable disability rating for erectile dysfunction. 

4.  Entitlement to service connection for a low back disorder.  

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1961 to August 1965.  

This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A June 2012 signed statement submitted by the Veteran indicated he was withdrawing his claims of entitlement to a disability rating in excess of 40 percent for prostate cancer, entitlement to compensable disability ratings for bilateral hearing loss and erectile dysfunction, and entitlement to service connection for a low back disorder, prior to the promulgation of a decision in this appeal with respect to these claims.  


CONCLUSIONS OF LAW

1.  The criteria of the withdrawal with respect to the issue of entitlement to a disability rating in excess of 40 percent for prostate cancer are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).
2.  The criteria of the withdrawal with respect to the issue of entitlement to a compensable disability rating for bilateral hearing loss are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

3.  The criteria of the withdrawal with respect to the issue of entitlement to a compensable disability rating for erectile dysfunction are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

4.  The criteria of the withdrawal with respect to the issue of entitlement to service connection for a low back disorder are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

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 (2012).  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.  

In this particular case at hand, the Veteran submitted a statement in June 2012 indicating that he was withdrawing the claims of entitlement to a disability rating in excess of 40 percent for prostate cancer, entitlement to compensable disability ratings for bilateral hearing loss and erectile dysfunction, and entitlement to service connection for a low back disorder.  

As the Veteran has withdrawn his appeal, there remain no allegations of errors of fact or law for appellate consideration with respect to these claims.  Accordingly, the Board does not have jurisdiction over them and they are dismissed. 



ORDER

The appeal as to the claim of entitlement to a disability rating in excess of 40 percent for prostate cancer is dismissed. 

The appeal as to the claim of entitlement to a compensable disability rating for bilateral hearing loss is dismissed. 

The appeal as to the claim of entitlement to a compensable disability rating for erectile dysfunction is dismissed. 

The appeal as to the claim of entitlement to service connection for a low back disorder is dismissed. 


REMAND

The Veteran contended that his service-connected disabilities have rendered him unemployable and, therefore, he is entitled to a TDIU. 

The Veteran may be awarded a TDIU upon a showing 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.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. 
§§ 3.341, 4.16, 4.19.

For assignment of a TDIU, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  If there is only one service-connected disability, it must be rated at 60 percent or more; whereas if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to at least 70 percent.  38 C.F.R. § 4.16(a).  

In the instant case, the Veteran's service-connected disabilities are: PTSD, rated at 50 percent; prostate cancer, rated at 40 percent; tinnitus, rated at 10 percent; bilateral hearing low, rated at 0 percent; and erectile dysfunction, rated at 0 percent, for a combined disability rating of 70 percent.  As such, he meets the threshold schedular requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a).  Therefore, the remaining inquiry is whether such service-connected disabilities render him unable to follow a substantially gainful employment.  

In this regard, the Veteran has reported that he cannot be around others due to his unsocial nature because of his PTSD.  He also states that he wears hearing aids because of his hearing loss.  Additionally, he argues that his tinnitus does not help with his ability to hear and comprehend what is being said.  As a result, he is unable to get a job.  

The Board notes that in August 2011, the Veteran underwent multiple VA compensation examinations for his service-connected disabilities.  In the April 2013 Informal Hearing Presentation, the Veteran's representative argues these examinations are inadequate to address the TDIU claim for several reasons.  First, the August 2011 VA psychiatric examiner failed to discuss the Veteran's impact the side effects from the Veteran's psychiatric medications (taken for service-connected psychiatric disorder) has on his employability.  Second, in determining that the Veteran's prostate cancer does not impact his ability to work because he retired from law enforcement in 2005, the Veteran's representative states that just because the Veteran retired due to age in 2005, it does not follow that he is otherwise capable of obtaining and maintaining substantially gainful employment.  Finally, the Veteran's represenatitve states that the service-connected disiablities must also be considered in the aggregate, and not just separately, as is represented in the August 2011 VA examinations.  The Board agrees that the current examinations are inadequate to address the issue of entitlement to a TDIU.

The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As such, a remand is necessary in order to obtain an opinion from an appropriate medical professional as to whether the Veteran's service connected disabilities, when considered separately and in the aggregate, render him unable to follow a substantially, as opposed to marginally, gainful employment.  

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file to an appropriate VA examiner to obtain an opinion regarding whether the Veteran's service-connected disabilities, evaluated separately and in the aggregate, render him unable to follow a substantially, as opposed to marginally, gainful occupation.  The examiner should review the Veteran's claims file, to specifically include the opinions offered by the respective August 2011 VA examiners regarding the impact the Veteran's individual service-connected disabilities have on his employability.  

Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities.  The examiner should provide a complete rationale for any opinion offered, reflecting consideration of both the lay and medical evidence of record.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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 Supp. 2012).



______________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs