Citation Nr: 1806219 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 02-08 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to February 1, 2013. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 3. Entitlement to an initial rating in excess of 20 percent for gouty arthritis of the right foot, prior to February 1, 2013. 4. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left foot, prior to February 1, 2013. 5. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the right hand, prior to February 1, 2013. 6. Entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left hand, prior to February 1, 2013. 7. Entitlement to an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout. 8. Entitlement to a rating in excess of 10 percent for residuals of right foot fracture. REPRESENTATION The Veteran is represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2001, October 2007, and March 2011 rating decisions by the Department of Veterans' Affairs (VA) Regional Office in New York, New York. A detailed adjudicative history was provided in the Board's August 2016 decision-remand and, thus, it need not be repeated here. For present purposes it is sufficient to state that, subsequent to the August 2016 decision-remand, the Agency of Original Jurisdiction (AOJ) undertook the requested development, re-adjudicated the appeal, and issued an August 2017 supplemental statement of the case. Thereafter, the above-captioned claims were remitted to the Board for further appellate review. In a January 2018 pre-conference conference, the Veteran's representative agreed to withdraw the request for a hearing on the issue before the Board if the undersigned found a basis to grant issue one based on a review of the record, which has been found. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran was unable to obtain and maintain substantially gainful employment consistent with his education and occupational experiences due to his service-connected disability on and after January 1, 2010. 2. In January 2018, the Veteran submitted correspondence wherein he withdrew every claim on appeal except the claim of entitlement to TDIU prior to February 1, 2013. CONCLUSIONS OF LAW 1. The criteria for TDIU have been on January 1, 2010, but not sooner. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). 2. The criteria for withdrawal of the appeal with respect to the claim of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for withdrawal of the appeal with respect to the claim of entitlement to an initial rating in excess of 20 percent for gouty arthritis, right foot, prior to February 1, 2013, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of the appeal with respect to the claim of entitlement to an initial rating in excess of 10 percent for tophaceous gout, left foot, prior to February 1, 2013, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of the appeal with respect to the claim of entitlement to an initial rating in excess of 10 percent for tophaceous gout, right hand, prior to February 1, 2013, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for tophaceous gout, left hand, prior to February 1, 2013, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The criteria for withdrawal of the appeal with respect to the issue of entitlement to an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 8. The criteria for withdrawal of the appeal with respect to the issue of entitlement to a compensable rating for residuals of right foot fracture have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date for TDIU The Veteran is seeking an effective date of January 1, 2010 for the grant of entitlement to TDIU, for which the current effective date is February 1, 2013. In support of his appeal, the Veteran emphasizes two pieces of evidence: a June 2011 VA examination report and an October 2017 vocational consultation report. According to the June 2011 VA examiner, the Veteran's service-connected "deforming" gouty arthritis of the wrists, hands, and feet, rendered him unemployable. In support of this opinion, the examiner explained as follows: [The Veteran] has lost the use of his hands for any physical job. Besides, he can not write or hold a telephone for time necessary to perform tasks in sedentary job. He has pain daily on both hands and feet. The October 2017 vocational consultant determined that the Veteran was not employable from 2010 and February 1, 2013, due to his service-connected gout and diabetes mellitus, type II. In support of this determination, the consultant provided the following rationale: The record clearly indicates that [the Veteran's] diabetes mellitus, type II was uncontrolled during this time period and that his gout caused significant effects to employment. His symptoms have resulted in an inability to attend to basic work functions and resulted in him being unable to maintain substantially gainful employment. The Board acknowledges that the record includes clinical findings and opinions that are negative to the Veteran's claim. However, based on the June 2011 VA examination and October 2017 vocational consultation report, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to obtain and maintain substantially gainful employment consistent with his education and occupational experiences due to his service-connected disabilities on and after January 1, 2010. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Consequently, with application of the reasonable doubt doctrine, the Board finds that January 1, 2010, but not earlier, is warranted for TDIU. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). All Other Claims An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the veteran or the authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). In January 2018, the Veteran submitted correspondence wherein he expressed a desire to withdraw all other claims on appeal if the Board determined that the evidence of record supported an effective date of January 1, 2010 for TDIU. As determined above, the Board found that the evidence of record was at least in equipoise as to this matter and, thus, granted an effective of January 1, 2010 for TDIU. As such, the entire benefit sought by the Veteran was granted and, accordingly, the request for withdrawing the other pending claims is accepted. See generally AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant may limit their claim or appeal to the issue of entitlement to a particular disability rating that is less than the maximum allowed by law for a specific service-connected condition, but, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available ratings for that condition). VA received the request to withdraw every claim on appeal (except entitlement to TDIU prior to February 1, 2013) prior to the promulgation of a Board decision. 38 C.F.R. § 20.204(a), (b)(3). Consequently, there remains no allegation of error of fact or law for appellate consideration with respect to these claims. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II; an initial rating in excess of 20 percent for gouty arthritis of the right foot, prior to February 1, 2013; an initial rating in excess of 10 percent for tophaceous gout of the left foot, prior to February 1, 2013; an initial rating in excess of 10 percent for tophaceous gout of the right hand, prior to February 1, 2013; an initial rating in excess of 10 percent for tophaceous gout of the left hand; an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout; and a rating in excess of 10 percent for residuals of right foot fracture, and, thus, they are dismissed. ORDER On and after January 1, 2010, but not earlier, TDIU is granted. The claim of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, is dismissed. The claim of entitlement to an initial rating in excess of 20 percent for gouty arthritis of the right foot, prior to February 1, 2013, is dismissed. The claim of entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left foot, prior to February 1, 2013, is dismissed. The claim of entitlement to an initial rating in excess of 10 percent for tophaceous gout of the right hand, prior to February 1, 2013, is dismissed. The claim of entitlement to an initial rating in excess of 10 percent for tophaceous gout of the left hand, prior to February 1, 2013, is dismissed. The claim of entitlement to an effective date prior to February 1, 2013, for the grant of a 100 percent rating for gout is dismissed. The claim of entitlement to a rating in excess of 10 percent for residuals of right foot fracture is dismissed. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs