Citation Nr: 1804039 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-35 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for cornea dystrophy. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Michael J. Brown, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned at a video conference hearing. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for entitlement to service connection for cornea dystrophy, is requested. 2. The service-connected eczematous dermatitis and glaucoma associated with eczematous dermatitis disabilities result from a common etiology. 3. For the entire period on appeal, the Veteran has been unable to obtain or retain substantially gainful employment due to his service-connected eczematous dermatitis and associated glaucoma disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for cornea dystrophy, by the Veteran, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. For the entire period on appeal, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, in his October 2017 video conference hearing, has withdrawn the appeal of entitlement to service connection for cornea dystrophy. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. II. TDIU Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Here, the Board finds that a TDIU is warranted based on the Veteran's service-connected eczematous dermatitis and glaucoma associated with eczematous dermatitis disabilities. At the outset, the Board notes that the Veteran is in receipt of a 60 percent evaluation for eczematous dermatitis; a 10 percent rating for glaucoma associated with eczematous dermatitis; and a noncompensable rating for a scar, right forearm, residual excision of fibroma. As the glaucoma was service-connected as secondary to the eczematous dermatitis, the Board finds that these disabilities both result from a common etiology. See 38 C.F.R. § 4.16(a) (disabilities resulting from a common etiology or a single accident will be considered as one disability). As such, the Veteran's combined evaluation for the service-connected eczematous dermatitis and glaucoma disabilities meets the schedular percentage requirements for a TDIU. Additionally, the evidence demonstrates that the Veteran is unable to obtain or retain substantially gainful employment due to his service-connected eczematous dermatitis and glaucoma disabilities. On the Veteran's April 2013 VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked full-time as a tax preparer at H & R Block on April 15, 2012, which he indicated was the date his disability affected his full-time employment. He listed his vision problems from his service-connected glaucoma as the disability preventing him from maintaining gainful employment. He noted that he had a college education, with no additional training. He explained that as a tax preparer, it had become increasingly difficult to read the numbers associated with tax preparation, resulting in decreased productivity as a result of having to double check his inputs. He noted that it was expected he would be terminated, or not rehired, as a result of his disability. In a statement dated in October 2013, the Veteran reported that his primary employment for the last 30 years had been accounting and preparation of income taxes. He indicated that he did not believe he could do this professionally any longer as a result of his disability. In his October 2017 hearing, the Veteran testified as to the impact his service-connected eczematous dermatitis and glaucoma disabilities and resulting vision problems had on his ability to work. He testified that although he stopped working full-time in 2012, he performed seasonal tax preparation work for two and a half months out of the year until 2015. In a statement dated in November 2017, the Veteran's treating physician noted that the Veteran had been under his care for severe primary open angle glaucoma in the right eye for the past seven years. The physician indicated that the Veteran's glaucoma has impacted his vision in the right eye resulting in difficulty performing visual tasks. The physician indicated that the Veteran will have difficulty performing fine visual tasks as an accountant, and difficulty reading and using a computer. The physician noted that the Veteran had also been diagnosed with corneal dystrophy, which was also affecting his visual acuity. The physician found that it was likely that a combination of both conditions was affecting his activities of daily living. However, the physician opined that because the Veteran's glaucoma was affecting his lower visual field, his glaucoma was the main culprit in regards to the Veteran's difficulty with reading and computer work. Given the Veteran's credible lay statements regarding the impact of his service-connected disabilities on his ability to work and the functional limitations described by his treating physician, the Board finds that the Veteran's service-connected eczematous dermatitis and associated glaucoma would likely prevent him from obtaining and maintaining gainful employment. In particular, the visual problems resulting from his service-connected glaucoma would cause difficulty with reading and computer work, and would likely prevent the type of employment he previously engaged in preparing tax returns. Ultimately, the Board finds that the preponderance of the evidence establishes that the Veteran, given his occupational history and functional limitations, is unable to obtain or retain substantially gainful employment due to his service-connected eczematous dermatitis and associated glaucoma disabilities. ORDER The claim of entitlement to service connection for cornea dystrophy is dismissed. For the entire period on appeal, entitlement to TDIU is granted, subject to the regulations pertaining to the payment of monetary benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs