Citation Nr: 1803257 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-09 186A ) DATE ) ) On appeal received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral flatfoot. 2. Entitlement to an increased rating for right ankle arthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Jill Mitchell-Thein, Attorney ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal for entitlement to service connection for bilateral flatfoot and entitlement to an increased rating for right ankle arthritis. 2. The Veteran is service-connected with two disabilities collectively rated at 70 percent, including post-traumatic stress disorder (PTSD) rated at 70 percent. 3. The Veteran's service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal have been met for the issues of entitlement to service connection for bilateral flatfoot and entitlement to an increased rating for right ankle arthritis. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Bilateral Flatfoot and Increased Rating for Right Ankle Arthritis 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. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by an authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a), 38 C.F.R. § 20.204(b)(1). In the present case, the Veteran withdrew his appeal as to the issues of entitlement to service connection for bilateral flatfoot and entitlement to an increased rating for right ankle arthritis in a letter submitted to the Board by his representative in October 2017. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. TDIU Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Moreover, marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Whether a veteran is capable of more than marginal employment must be considered. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). The Veteran meets the schedular rating requirements for a TDIU. See 38 C.F.R. § 4.16(a), as he has two or more disabilities, with at least one disability ratable at 40 percent (i.e., PTSD). The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. The Veteran has contended that his service-connected disabilities prevent him from securing or following substantially gainful employment, and that he became too disabled to work around July 2010. See July 2011 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran completed one year of college but has no other formal education or training. Since leaving active duty, he has worked in fast food service, in housekeeping, as a store clerk, and as a floor technician. Id.; March 2017 SSA Records, p. 13 The Veteran maintains that he is unable to maintain employment because his service-connected disabilities impact his ability to work. The Veteran underwent a VA examination in May 2016 for his PTSD. Active symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Further, his treatment records are replete with reports of suicidal ideation and attempts; homicidal ideation; multiple periods of homelessness; cannabis abuse; irritability; difficulty coping; isolation; anger; impaired insight and judgment; and, recurrent psychiatric hospital care. See July 2015 CAPRI, p. 3; July 2015 CAPRI, p. 9; April 2012 CAPRI, pp. 1; 3-9, 14, 22, 25, 30, 40-41, 53, 55. The Veteran is also unable to stand or walk for more than 30 minutes without a break because of his service-connected right ankle arthritis. See April 2017 VA Examination, p. 9. The Board finds that the collective impact of the Veteran's service-connected disabilities makes it impossible for the Veteran to secure and maintain substantially gainful employment. Although the Veteran has shown employment, such employment is not "substantially gainful." While there is no regulatory definition for the term "substantially gainful employment," 38 C.F.R. § 4.16(a) instructs that "[m]arginal employment shall not be considered gainful employment." "Marginal employment" exists when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Here, as is often the case, there is insufficient evidence in the claims folder to determine earned annual income. Regardless, even if the income exceeds the poverty threshold, marginal employment may still exist on a facts found basis. The Board finds that the Veteran's intermittent periods of employment constitute no more than marginal employment, and do not preclude an award of TDIU. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The issue of entitlement to service connection for bilateral flatfoot is dismissed. The issue of entitlement to an increased rating for right ankle arthritis is dismissed. Entitlement to a TDIU is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs