Citation Nr: 18158643 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-17 269 DATE: December 17, 2018 ORDER The Veteran’s claim for entitlement to an effective date prior to August 24, 2011 for the grant of a 40 percent disability rating for low back syndrome with prominent lumbar lordosis is dismissed. Entitlement to a disability rating in excess of 40 percent for low back syndrome with prominent lumbar lordosis is dismissed. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) prior to August 24, 2011 is remanded. FINDING OF FACT On November 19, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the appeal of his claims for an effective date prior to August 24, 2011 for the grant of a 40 percent disability rating for low back syndrome with prominent lumbar lordosis and for a disability rating in excess of 40 percent for low back syndrome with prominent lumbar lordosis is requested. CONCLUSION OF LAW 1. The criteria for the withdrawal of the appeal of the claim for an effective date prior to August 24, 2011 for the grant of a 40 percent disability rating for low back syndrome with prominent lumbar lordosis by the Veteran’s representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for the withdrawal of the appeal of the claim for a disability rating in excess of 40 percent for low back syndrome with prominent lumbar lordosis by the Veteran’s representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to May 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Appeals Management Center (AMC) in Washington, DC. Jurisdiction of this case is with the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In this substantive appeal, the Veteran indicated that he wanted a hearing before a Veterans Law Judge; however, in a November 2018 statement, the Veteran’s representative indicated that he withdrew his request for a hearing. Clarification of Issues on Appeal In July 2011, the Board denied the Veteran’s claims for a rating in excess of 20 percent for his service-connected back disability and a rating in excess of 20 percent for a left shoulder disability. Also in that action, the Board took jurisdiction over a claim for TDIU under the holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) relating to his September 2008 claims for increased ratings for service-connected low back and left shoulder disabilities. The Board remanded the TDIU claim for further development. Included in the Board’s remand directives was an instruction to provide the Veteran with a VA examination to determine whether his service-connected disabilities rendered him unemployable. The Veteran was provided with this examination on August 24, 2011. Based on the findings of this examination, in the April 2012 rating decision, the AMC increased the Veteran’s rating for his service-connected back disability to 40 percent effective the date of this examination. The Board again remanded the Veteran’s TDIU claim in a June 2014 remand, and in a November 2014 rating decision, the AMC granted entitlement to TDIU, effective August 24, 2011—the date the Veteran met the rating percentage requirements for a TDIU under 38 C.F.R. § 4.16 (a) (2018). The period of time when the Veteran’s service-connected back disability was rated at 20 percent has been the subject of a final Board decision and is not on appeal. As such, in this decision, the Board cannot adjudicate the disability rating in excess of 20 percent in effect prior to August 24, 2011. With regard to the Veteran’s TDIU claim, however, as the Board took jurisdiction over the TDIU claim under Rice based on his increased rating claims for his left shoulder and his back, the appeals period for that claim begins on September 9, 2008, when the Veteran filed his increased rating claims. The claim for TDIU prior to August 24, 2011 is thus before the Board and is remanded herein. Withdrawal of Claims 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. 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. 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, through his authorized representative, has withdrawn the appeal of his claims for an effective date prior to August 24, 2011 for the grant of a 40 percent disability rating for low back syndrome with prominent lumbar lordosis and for a disability rating in excess of 40 percent for low back syndrome with prominent lumbar lordosis. As such, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. REASONS FOR REMAND VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). The regulations provide that if there is only one service-connected disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). As noted above, the Veteran has been granted a TDIU effective August 24, 2011—the date the Veteran met the percentage requirements under 38 C.F.R. § 4.16(a) (2018). Because it is established VA policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, rating boards should submit to the Director, Compensation and Pension Services, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to VA’s Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008), citing Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, prior to August 24, 2011, the Veteran did not meet the percentage requirements for TDIU under 4.16(a). However, the Veteran has contended that he has not been able to work due to his service-connected disabilities since 2006. As such, the issue of entitlement to TDIU from September 9, 2008 to August 24, 2011 should be referred to the Director of Compensation and Pension Services, for TDIU consideration under 38 C.F.R. § 4.16 (b) (2018). The matter is REMANDED for the following action: (Continued on the next page)   Refer the issue of entitlement to TDIU from September 9, 2008 to August 24, 2011 to the Director of Compensation and Pension Services, for TDIU consideration under 38 C.F.R. § 4.16 (b) (2018). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith