Citation Nr: 1804061	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-10 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel



INTRODUCTION

The Veteran had active duty service with the United States Navy from June 1968 to March 1970, and was discharged under honorable conditions.

These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2013 and June 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. 


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from June 1968 to March 1970.

2.  On August 14, 2014, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he requested to withdraw his appeal seeking an increased evaluation for PTSD.

3.  The Veteran has been incarcerated since November 1987 due to a felony conviction, and no parole date is presently anticipated.


CONCLUSION OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an increased evaluation for PTSD have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  The criteria for entitlement to TDIU have not been met.  38 U.S.C.A. §§ 1155, 5103 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal

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.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).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 appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn his appeal with respect to an increased evaluation for PTSD and, hence, there remain no allegations of errors of fact or law for appellate consideration.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 and it is dismissed. 

II.  TDIU

The Veteran filed a claim for entitlement to TDIU in April 2012.  While he submitted statements clearly suggesting an intent to at least withdraw his appeal for the issue of entitlement to an increased evaluation for PTSD in June 2014, July 2014, and August 2014, including the response form for the May 2014 Supplemental Statement of the Case that requested to withdraw his present appeal, his statements conflicted as to whether he intended to withdraw solely the PTSD claim, or if he intended to withdraw his claim of entitlement to TDIU as well.  

To further complicate the matter, the Veteran's representative of record submitted an Appellate Brief in January 2018 solely addressing the Veteran's claim of entitlement to TDIU.  The brief did not address the Veteran's incarcerated status, felony conviction, or advance any substantive arguments specifically pertaining to his claim of entitlement to TDIU.  

As to not unduly prejudice the Veteran, the Board treats his withdrawal as specifically pertaining to the issue of PTSD, and will address the issue of TDIU.

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the Veteran 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 service-connected 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 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).  VA will grant TDIU when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 

Specific provisions, however, apply to incarcerated Veterans that limit the availability of TDIU as a matter of law.  Under 38 C.F.R. § 3.341(b), a rating for TDIU that would first become effective while a Veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration.  See 38 U.S.C.A. § 5313(c).  Adjudication of TDIU is prohibited if that rating would begin while the Veteran is incarcerated for a felony conviction.  See VAOPGCPREC 13-97 (Apr. 7, 1997).  Accordingly, entitlement to TDIU may be denied as a matter of law if the TDIU rating would commence during a period of incarceration for a felony. 

The Veteran filed a claim of entitlement to TDIU in April 2012.  In September 1987, the Veteran was convicted of a felony in the state of Utah.  He was incarcerated for that felony in November 1987.  The evidence of record reflects that the Veteran continues to be incarcerated in connection with this aforementioned felony conviction.  As such, the Veteran filed his claim of entitlement to TDIU while incarcerated for a felony conviction.  There is also no indication of record in his claims file, or according to Utah Department of Corrections records, that a parole date has been established.  If this claim were to be adjudicated, the rating would begin during a period in which the Veteran was incarcerated, and would thus violate 38 U.S.C.A. § 5313(c) and 38 C.F.R. § 3.341(b).  As such, the Veteran's claim of entitlement to TDIU must be denied as a matter of law.

ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied as a matter of law.



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs