Citation Nr: 1754814 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-34 108A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee instability. 2. Entitlement to an initial compensable rating for surgical scar, left knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Office of Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1991 to April 1994. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision of the Philadelphia, Pennsylvania, Regional Office (RO). In his June 2017 hearing testimony, the Veteran withdrew both increased rating claims. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. In June 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. FINDINGS OF FACT 1. In June 2017, the Veteran withdrew his appeal for an increased rating for left knee instability and for surgical scars, left knee. 2. The Veteran's service-connected disorders make him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to an increased rating for left knee instability have been met. 38 U.S.C.A. §§ 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016). 2. The criteria for withdrawal of the appeal pertaining to an increased rating for surgical scars, left knee have been met. 38 U.S.C.A. §§ 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016). 3. The criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Ratings for Left Knee Instability and Surgical Scars, Left Knee 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In his June 2017 hearing testimony, the appellant notified the Board that he wished to withdraw his appeals for an increased rating for knee instability and an initial compensable rating for surgical scars, left knee. The Veteran has withdrawn his increased rating claims. There remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). The Veteran has a rating of 70 percent for his post-traumatic stress disorder, effective March 29, 2013 and has a current combined disability rating of 90 percent. In August 2012, the Veteran was afforded a VA examination. The examiner noted the Veteran's left knee conditions impact his ability to work and make him intolerant of excessive, repetitive, or prolonged activity, to include walking, standing, and heavy lifting. In the Veteran's February 2014 application for increased compensation based on total unemployability he indicated his disability affected his full-time employment beginning on March 1, 2012. In March 2014, the Veteran was afforded a VA examination. The Veteran reported attempting suicide by pill overdose in 2008. The Veteran also reported distressing dreams, dissociative reactions, prolonged psychological distress, and persistent and exaggerated negative beliefs. The examiner noted occupational and social impairment with reduced reliability and productivity due to the Veteran's posttraumatic stress disorder (PTSD). The examiner also indicated the Veteran had to stop working in the construction industry in 2012 due to his knee, back, and neck injuries. In the Veteran's June 2017 hearing testimony he indicated that he worked in 2011 for the last time. The Veteran stated he fell and hurt his knee on a step while carrying two boxes. The Veteran testified that he has had severe muscle spasms since his injury and has problems lifting things, getting dressed, sitting, standing, and walking. The Veteran also reported that his PTSD causes anger, anxiety attacks, and trouble concentrating in a work environment. The Veteran indicated he does not like being around people, particularly in large groups. The Veteran also testified that his highest level of education was high school diploma. The Veteran has a history of suicide attempts, anger, dissociative reactions, prolonged psychological distress and exaggerated negative beliefs; problems lifting things, getting dressed, sitting, standing, and walking. Additionally, he had no education after high school and his primary work experience is in construction. He did not have a trade or skill. Given these factors, the Board finds that the Veteran cannot secure or follow a substantially gainful occupation as a result of his PTSD. The Veteran meets the schedular requirements for TDIU and a TDIU is warranted. ORDER The claim of entitlement to an increased rating for left knee instability is dismissed. The claim of entitlement to an initial compensable rating for surgical scars, left knee is dismissed. A total rating based on individual unemployability is granted. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs