Citation Nr: 20021448 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-21 669 DATE: March 25, 2020 ORDER The appeal with respect to entitlement to a schedular disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to June 2, 2014 (exclusive of a period of temporary total rating from October 29, 2013 to December 31, 2013), and in excess of 70 percent thereafter, is dismissed. REMANDED Entitlement to an effective date prior to June 2, 2014 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT On the record at a February 2020 Board hearing, prior to the promulgation of an appellate decision, the Veteran requested that the appeal with respect to his entitlement to a higher schedular disability rating for PTSD be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeal with respect to the issue of entitlement to a higher schedular disability rating for PTSD have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1972 to December 1973. His decorations include the National Defense Service Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from September 2015 and February 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In February 2020, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The appeal with respect to entitlement to a higher schedular disability rating for PTSD is withdrawn. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. An appellant may withdraw a substantive appeal by informing the Board either in writing or on the record at a hearing that he or she would like to withdraw the appeal. 38 C.F.R. § 20.204 (2018). In this case, on the record at the February 2020 Board hearing, prior to the promulgation of a decision on the matter, the Veteran requested that the appeal with respect to the issue of his entitlement to a higher schedular disability rating for PTSD be withdrawn. As the Veteran has withdrawn the appeal of this issue, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue and it must be dismissed. REASONS FOR REMAND Entitlement to a TDIU prior to June 2, 2014 is remanded. The Veterans seeks to establish an effective date prior to June 2, 2014 for the award of a TDIU. Specifically, he contends that an effective date of November 15, 2010 is warranted. He maintains that his claim for a TDIU was raised in connection with his continuously prosecuted claim for a higher initial rating for PTSD, and that he was unable to secure or maintain substantially gainful employment as a result of his PTSD at least as early as November 15, 2010. See, e.g., February 2020 Board hearing transcript. The Board finds that the Veteran’s TDIU claim is a component of his claim for a higher initial rating for PTSD. See January 2015 VA Form 21-894; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The effective date for the award of service connection for PTSD is November 15, 2010, and the Veteran has continuously prosecuted the rating therefor since the time that service connection was established, through the submission of additional evidence and otherwise. See, e.g., 38 C.F.R. § 3.156(b). Accordingly, the TDIU claim encompasses the entire PTSD rating period from November 15, 2010. The Veteran does not meet the percentage rating requirements for a schedular award of TDIU prior to June 2, 2014. See 38 C.F.R. § 4.16(a). However, he has asserted that his PTSD prevented him from securing or maintaining substantially gainful employment prior to that date. In this regard, the Board notes that an April 2019 letter by M.C., the Veteran’s psychologist, noted that the Veteran’s chronic PTSD has remained so chronically severe that in her opinion, the Veteran has been unemployable since he initiated treatment under her care on October 25, 2011. See also July 2011 VA examination report (noting that the Veteran’s PTSD caused difficulty in establishing and maintaining effective work relationships). Based on the foregoing, the Board finds evidence to suggest that, for the period prior to June 2, 2014, the Veteran may have been unemployable due to PTSD. As the percentage requirements of 38 C.F.R. § 4.16(a) are not met for that period, the Board cannot make a determination with respect to the Veteran’s entitlement in the first instance. Rather, the matter must be referred to the Director of Compensation for consideration of TDIU on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b). This matter is REMANDED for the following action: 1. Refer the matter of the Veteran’s entitlement to a TDIU prior to June 2, 2014 to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.