Citation Nr: 1318672	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-16 294	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for asbestosis.

2.  Entitlement to higher initial ratings for posttraumatic stress disorder (PTSD) with depression, specifically, higher than 30 percent prior to March 22, 2004, higher than 50 percent from March 22, 2004 to March 30, 2011, and higher than 70 percent since March 31, 2011.

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from June 1972 to June 1974.

This appeal to the Board of Veterans' Appeals (Board) is from March 2008 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In support of his claims, the Veteran twice testified at hearings at the RO before Veterans Law Judges (VLJs) of the Board, in other words at Travel Board hearings.  The initial hearing was in February 2010 and the more recent hearing in February 2013.  Transcripts of both hearings are in the file.

In an intervening July 2012 rating decision, the RO "staged" the rating for the Veteran's PTSD, that is to say separate ratings were assigned for distinct periods in which the disability was manifested by symptoms that warranting different ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  In addition, service connection for depression was granted and incorporated into the rating for the PTSD.  As well, service connection was granted for erectile dysfunction (ED), which was rated as 0-percent disabling, so noncompensable.  The Veteran has not since, in response, separately appealed the rating or effective date for his ED; therefore, that claim is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).


In August and December 2011 statements, and in his February 2013 testimony, the Veteran stated that he was unemployable because of his service-connected psychiatric disability.  In several precedent decisions, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that a claim for a TDIU is part and parcel of an increased-rating claim, so not a separate claim, when this derivative claim either is expressly alleged or otherwise raised by the record.  See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009).  So this derivative TDIU claim is before the Board.  In Mayhue v. Shinseki, 24 Vet App 273 (2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD.  Citing Rice, the Court reasoned that a request for a TDIU is not a separate claim for benefits, rather an attempt to obtain an appropriate rating for a disability.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim.

At the very outset of his recent February 2013 hearing before the Board, however, the Veteran withdrew his claim for higher ratings for his PTSD with depression.  He also withdrew his claim for service connection for asbestosis.  Thus, the Board is dismissing the appeal of these claims in this decision.  But he also indicated that he is still alleging entitlement to a TDIU, so this is the only remaining claim to be decided.

Regarding his two hearings before the Board, by law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members.  See 38 U.S.C.A. § 7102(a) (West 2002).  Thus, when an appellant has had a hearing before two separate Veterans Law Judges during an appeal, and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review.  In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 as requiring that an appellant be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision.  Here, though, since all of the issues that were discussed during the initial February 2010 Travel Board hearing were withdrawn and, therefore, not addressed during the more recent February 2013 Travel Board hearing, there is no need for a panel decision in this case.

This derivative TDIU claim requires further development before being decided, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

Also, in April 2013, so since his February 2013 Travel Board hearing, the Veteran has submitted a statement in support of claim (VA Form 21-4138) indicating he has cancelled the power of attorney (POA) in favor of the Arkansas Department of Veterans Affairs (ADVA), preferring instead to make all written presentations himself, so he is proceeding on his own behalf, therefore pro se.


FINDING OF FACT

At the outset of his February 2013 Travel Board hearing, prior to the promulgation of a decision in this appeal, the Veteran indicated he is withdrawing his claims for higher ratings for his psychiatric disability (PTSD with depression) and for service connection for asbestosis. 


CONCLUSION OF LAW

Since the criteria are met for withdrawal of the substantive appeals concerning these claims, the Board no longer has jurisdiction to consider them.  38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

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 a claimant or by his or her authorized representative.  Id.  

During the February 2013 Travel Board hearing, it was noted the Veteran was satisfied with the increase in the ratings assigned for his psychiatric disability (PTSD with depression).  He therefore withdrew his appeal of this claim.  He also withdrew his appeal for service connection for asbestosis.  Hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims and the Board does not have jurisdiction to review them; they resultantly are dismissed.


ORDER

The appeal of the claims for higher ratings for the PTSD with depression and for service connection for asbestosis is dismissed.


REMAND

Since the Veteran raised his derivative claim of entitlement to a TDIU in August 2011, he has not been provided notice of VA's duties to notify and assist him with this claim pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).


The March 2011 VA compensation examiner offered an opinion to the effect that the Veteran's psychiatric symptoms were not conducive to employment.  While this statement supports the notion this disability adversely impacts the Veteran's ability to obtain and maintain substantially gainful employment, it does not definitively indicate whether he is unemployable on account of this disability and his other secondarily service-connected disability (the ED).  Therefore, an examination and medical opinion are needed to assist in making this important determination.  As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362  , 331-32 (1991).

Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  With regards to this derivative TDIU claim, ensure the Veteran receives VCAA compliant notice and afford him the opportunity to submit additional evidence and argument in response.

2.  Next schedule him for a VA compensation examination for a medical opinion concerning whether his service-connected psychiatric disability (PTSD with depression), along with his ED, either alone or in combination, prevent him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, but not his advancing age and disabilities that are not service connected.

The claims file, including a complete copy of this remand, must be forwarded to the examiner for review, and this consideration should be reflected in the examiner's report.

It is essential the examiner discuss the underlying basis of the opinion, whether favorable or unfavorable, including considering the prior March 2011 VA compensation examiner's mention to the effect that the Veteran's psychiatric symptoms were not conducive to employment.  So if, as an example, this current examiner concludes that some forms of employment are still a viable possibility, even if not all types of jobs or that the service-connected disabilities merely impact, not altogether preclude, employability, the examiner also has to discuss specifically what these jobs might entail allowing the Veteran to still work.  The examiner also is advised that the Veteran is competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating an opinion.  If the examiner rejects the Veteran's reports, the examiner must provide the necessary reasons or bases.

3.  Upon completion of this and any other necessary development, adjudicate this derivative TDIU claim.  If this claim is denied, provide the Veteran a supplemental statement of the case (SSOC) and time to respond to it before returning the file to the Board for further appellate consideration of this claim.


He has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs