Citation Nr: 20036728 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 17-65 798 DATE: May 28, 2020 ORDER Entitlement to an initial rating of right patellofemoral pain syndrome exceeding 10 percent is dismissed. Entitlement to an initial rating of left patellofemoral pain syndrome exceeding 10 percent is dismissed. Entitlement to an initial rating of bilateral hearing loss exceeding noncompensable is dismissed. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In a letter of April 2020 to the Board of Veterans’ Appeals, the representative of the Veteran stated that the Veteran wished to withdraw his pending appeals for increased initial ratings of right patellofemoral pain syndrome, left patellofemoral pain syndrome, and bilateral hearing loss. Attached to the letter was an Authorization to Withdraw dated in March 2020 and signed by the Veteran stating that he had agreed to withdraw those issues. 2. During the entire period on appeal, the Veteran has maintained substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for greater initial ratings of right patellofemoral pain syndrome, left patellofemoral pain syndrome, and bilateral hearing loss have been met. 38 U.S.C. § 7104(a), 38 C.F.R. § 20.205. 2. The criteria for entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeals of October 2016 and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Entitlement to an initial rating of right patellofemoral pain syndrome exceeding 10 percent. Entitlement to an initial rating of left patellofemoral pain syndrome exceeding 10 percent. Entitlement to an initial rating of bilateral hearing loss exceeding noncompensable. A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c). In a letter of April 2020 to the Board of Veterans’ Appeals, the representative of the Veteran stated that the Veteran wished to withdraw his pending appeals for greater initial ratings of right patellofemoral pain syndrome, left patellofemoral pain syndrome, and bilateral hearing loss. Attached to the letter was an Authorization to Withdraw dated in March 2020 and signed by the Veteran stating that he had agreed to withdraw those issues. Given the statements by the representative and the Veteran, there is no longer an allegation of error of fact or law concerning the initial evaluations of right patellofemoral pain syndrome, left patellofemoral pain syndrome, and bilateral hearing loss. Therefore, the Board does not have jurisdiction to review the appeals. 38 U.S.C. § 7104(a), 38 C.F.R. § 20.104. The claims are dismissed. TDIU Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. The Veteran seeks a TDIU and claims his service-connected disabilities impact his employment. His TDIU claim is part and parcel of his May 2016 claim for an increased rating for his service-connected cluster headaches disability, which was decided by the Board in April 2019. The Board remanded the TDIU claim for the RO to adjudicate the issue in the first instance, as the issue was raised by the Veteran’s attorney in the Veteran’s September 2016 Notice of Disagreement. The claim has been returned to the Board for further appellate review. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. A total disability rating for compensation purposes based on individual unemployability is warranted, where the schedular rating is less than total, when it is found by the rating agency that a disabled veteran is unable to secure and follow a substantially gainful occupation because of (a) a single service-connected disability ratable at 60 percent or more or (b) two or more service-connected disabilities provided that at least one 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. Only service-connected disabilities having a schedular rating that is less than 100 percent are considered. 38 C.F.R. § 4.16(a). Meeting schedular threshold requirements for eligibility for TDIU under 38 C.F.R. § 4.16(a) does not guarantee an award. The law requires that the evidence also show that a veteran is unemployable because of one or more service-connected disabilities rated at less than 100 percent. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In a claim of entitlement to TDIU, the central question is whether a veteran is unemployable because of his service-connected disabilities, not whether he can find employment. Van Hoose v Brown, 4 Vet, App. 361, 363 (1993. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The issue is whether the veteran can perform the physical and mental acts that are required by employment. Van Hoose, 4 Vet. App. at 363. The service-connected disabilities of the Veteran are cluster headaches, rated at 10 percent from July 7, 2004 and 50 percent from April 26, 2016; left patellofemoral pain syndrome, rated at 10 percent from October 17, 2016; right patellofemoral pain syndrome, rated at 10 percent from October 17, 2016; tinnitus, rated at 10 percent from August 2, 2016; left knee mild medial knee instability, rated at 10 percent from May 10, 2019; residual scar, right plantar foot, rated as noncompensable from July 7, 2004; and bilateral hearing loss, rated as noncompensable from August 2, 2016. The record shows that the schedular standards for consideration of entitlement to TDIU under § 4.16(a) were first met on October 17, 2016. The record also shows, however, that the Veteran has been employed throughout the appeal period for the TDIU claim. A June 2016 VA Headaches (including Migraine Headaches) Disability Benefits Questionnaire examination report includes a notation that the Veteran’s cluster headaches impacted his ability to work. However, the examiner then noted the Veteran’s report that he worked full time and had not called in sick or left work early because of his headaches. There is no indication in the examination report that the Veteran worked in a sheltered environment. In an Affidavit that he signed and submitted in September 2018, the Veteran described his severe symptoms from cluster headaches and related that they force him to make certain adjustments while he was at work, like keeping the lights off in his office during a headache episode. The conclusion to be drawn is that the Veteran experiences headache symptomatology while on the job, but has still remained employed. Similarly, a November 2017 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire examination report documents the Veteran’s description that his tinnitus was distracting and annoying, particularly at work and during meetings. Here again, the Board highlights that although the Veteran experiences symptomatology related to his service-connected hearing disabilities, he has maintained employment. Most recently, a May 2019 VA Knee and Lower Leg Disability Benefits Questionnaire examination report reflects the Veteran’s own report that he works at a power plant, holding a sedentary job in performance assurance. At that time, he reported that his bilateral knee pain prevented him from performing prolonged physical activities that are part of the job. While the Veteran undoubtedly experiences knee symptomatology that may impact some job activities, he is, nevertheless employed. There is no indication in the examination report that he is not gainfully employed or that he works within a sheltered environment. Although requested by the RO while the claim was on remand, the Veteran failed to submit a formal application for TDIU, VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, or otherwise provide any specific information regarding his current employment. As such, there is no reason to question his numerous lay statements that he has maintained substantially gainful employment during the entire period on appeal. Because the record demonstrates that during the appeal period the Veteran, although experiencing symptomatology due to his service-connected disabilities, has worked full time and that his in a work environment that was not a sheltered setting, the claim of entitlement to a TDIU rating must be denied. As a matter of law, a veteran cannot be employed full time in a non-sheltered work setting and still be entitled to this benefit. Rather, he must be shown incapable of sustaining substantially gainful employment because of service-connected disabilities. 38 C.F.R. § 4.16(a). The appeal will be denied. As the evidence is not in equipoise, it does not raise a reasonable doubt about the merits of the claim that would then be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Pitts 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.