Citation Nr: 21065868 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 10-36 685 DATE: October 27, 2021 ORDER Entitlement to service connection for a brain disorder is dismissed. Entitlement to service connection for seizures is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities other than major depressive disorder (MDD) is denied. FINDINGS OF FACT 1. On November 20, 2017, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran, through his attorney, that a withdrawal of the claims of entitlement to service connection for brain disorder and seizures is requested. 2. The preponderance of the evidence shows that the combined effects of the Veteran's lumbar spine disability and migraine headaches do not preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a brain disorder have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2021). 2. The criteria for dismissal of entitlement to service connection for seizures have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2021). 3. The criteria for entitlement to TDIU for disabilities other than MDD have not been met; referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1114 (s), 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.350 (i), 4.3, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The matters were previously before the Board in November 2017 and remanded for further development. Entitlement to service connection for a brain disorder and seizures 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the claims of entitlement to service connection for brain disorder and seizures. The November 20, 2017, withdrawal was in writing and included the name of the Veteran, the applicable VA file number, and a statement that the claims were withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for brain disorder and seizures and they are dismissed. Entitlement to TDIU The Veteran asserted that he was unable to obtain and maintain gainful employment as a result of his service-connected disabilities. While this appeal was pending, the Veteran was awarded service connection for MDD and assigned a 100 percent rating effective February 22, 2008. See November 2017 Rating Decision. Although TDIU is now moot with regard to whether it may be awarded for MDD, the Board must still consider whether TDIU is warranted based on any combination of the remaining service-connected disabilities. The Veteran was evaluated for lumbar spine disability as10 percent from February 22, 2008, and 20 percent from November 27, 2012, and migraine headaches has been rated noncompensable from August 19, 2008. Thus, the Veteran did not have a single service-connected disability, apart from his MDD, of at least 60 percent or more than one service-connected disability with at least a combined 70 percent rating. The Veteran does not meet the criteria for a schedular TDIU for the period on appeal. 38 C.F.R. § 4.16(a). Regarding potential entitlement to TDIU under 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service 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 § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The record does not support a finding that referral is warranted. Neither the Veteran nor his representative contend that he is unemployable solely due to service-connected lumbar spine disability and migraine headaches without consideration of the effects of his MDD. Rather, they assert that his MDD causes total occupational impairment and lumbar spine disability renders him unemployable as he lacks any educational and vocational training for sedentary work. Specifically, the Veteran's attorney argues the Veteran's MDD and lumbar spine disability should be considered "part and parcel of the same common nucleus of events." He further asserts the two disabilities should be "combined and considered one disability rating since they arise out of the same occurrence" and TDIU should be awarded given that he is unemployable as a result of both disabilities. See statement in support of claim received November 20, 2017. There are no assertions as to effects of the Veteran's headaches on employability. Moreover, the medical reports do not support a finding that referral is warranted. The May 2021 VA examiner while indicating the Veteran's lumbar spine disability would impact his ability to perform occupational tasks involving sitting, standing, or walking for any extended periods of time, did not indicate he was unemployable. The May 2021 VA headache examiner indicated that the Veteran's headache condition did not impact his ability to work. Absent the minimum percentage requirements for basic eligibility for TDIU based on disabilities other than MDD pursuant to 38 C.F.R. § 4.16(a) being met, and given the lack of evidence showing impairment due to service connected lumbar spine disability and migraine headaches alone which would preclude employment, the Board concludes that referral of this matter for extraschedular consideration is not necessary. The Board has also considered whether increased compensation benefits may be payable as special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC benefits under 38 U.S.C. § 1114 (s) are to be accorded when a veteran becomes eligible without need for a separate claim. See Bradley, 22 Vet. App. at 294. SMC at the housebound rate is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Veteran does not contend, and the record does not reflect, that the Veteran is housebound in fact, implicating the second prong of the housebound criteria. Accordingly, the Board shall narrow its analysis to the statutory housebound criteria. Here, although the Veteran does have a single disability that is separately evaluated at 100 percent (his MDD), the remaining disabilities (lumbar spine disability and migraine headaches) for this period do not result in a combined evaluation of at least 60 percent. Therefore, entitled to a SMC for statutory housebound status for this period is not warranted. The preponderance of the evidence is against the claim for TDIU and referral for extraschedular consideration is not warranted. Therefore, there is no reasonable doubt to be resolved. The appeal in the matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.