Citation Nr: 21067322 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-30 483 DATE: November 3, 2021 ORDER The claim of entitlement to a compensable evaluation for hypertension is dismissed. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on statutory housebound status is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for degenerative arthritis, right knee is remanded. Entitlement to an increased rating in excess of 10 percent for ilio-tibial band syndrome, left knee is remanded. FINDINGS OF FACT 1. The claim for entitlement to a compensable evaluation for hypertension was withdrawn on the record during a hearing held on October 22, 2021. 2. The Veteran's service-connected posttraumatic stress disorder (PTSD) renders him unable to secure and follow substantially gainful employment. 3. In addition to totally disabling PTSD, the Veteran has additional service- connected conditions which combine to an evaluation of 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for a compensable evaluation for hypertension are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 3. The criteria for entitlement to SMC at the housebound rate, on a statutory basis, have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1986 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decisions by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at an October 2021 virtual hearing held before the undersigned Veterans Law Judge (VLJ). This decision is being rendered prior to the production of a transcript of that hearing; given the favorable outcome, the Veteran is not prejudiced. The Board notes that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim. See Akles v. Derwinski, 1 Vet. App. 118 (1991). As such, this matter is also in appellate status as listed on the front page of this decision. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the appellant or their representative so long as the Veteran and/or claimant is identified, the file number is included, and there is a clear statement of withdrawal identifying the issue withdrawn. 38 C.F.R. §§ 19.55, 20.205. During the October 2021 hearing, the issue of entitlement to a compensable evaluation for hypertension was withdrawn on the record by the Veteran and his attorney; the requirements for withdrawal are met. As the Veteran has withdrawn his appeal on this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction in this matter, and the appeal must be dismissed. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability or disabilities. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. Thus, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). The Veteran meets the schedular criteria for TDIU under either measure. As the Veteran's PTSD is rated 70 percent disabling, the Board finds he meets the schedular criteria for TDIU. During his October 2021 hearing, the Veteran testified as to his difficulties with focus, concentration, and memory. He tends to get lost, and not know where he is. He depends on routine to function. VA treatment notes dated October 2020 indicate the Veteran endorsed symptoms including irritability, anger, anxiety, and depression on a daily basis. He was having relationship issues and couldn't wait for his significant other to go to work so he could be alone. His main triggers for anger are when he can't get others to understand how he feels and when he thinks others aren't listening. At his February 2020 VA initial PTSD examination, the Veteran's symptoms were noted to include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting; inability to establish and maintain effective relationships; and suicidal ideation. The VA examiner noted the Veteran became tearful while discussing his history of mental health symptoms since his tour for Operation Desert Shield/Desert Storm. The Board finds him unemployable based on his service-connected psychiatric disorder alone. Entitlement to a finding of TDIU is granted. Housebound Status In light of the award of TDIU, the Board must address whether a claim for SMC is reasonably inferred. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC is payable where the veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent disabling. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). The Board has found that service-connected PTSD, alone, warrants a finding of TDIU. Further, the Veteran's remaining disabilities, to include bilateral pes planus (30 percent), degenerative disc disease (10 percent), left ankle disability (10 percent), tinnitus (10 percent), degenerative arthritis of the right knee (10 percent), ilio-tibial band syndrome (left knee), radiculopathy right lower extremity (10 percent), and hypertension (0 percent) combine to a rating in excess of 60 percent disabling. Entitlement to SMC at the housebound rate is warranted. REASONS FOR REMAND The Veteran's claims for an increased evaluation in excess of 10 percent for degenerative arthritis right knee and for an increased evaluation in excess of 10 percent for ilio-tibial band syndrome, left knee, are remanded for additional development. The Veteran testified that his knee symptoms have increased in severity since his last VA examination. He also testified that he will be undergoing knee surgery in the near future. Based on the Veteran's testimony, a new VA knee examination is warranted to ascertain the current nature and severity of the Veteran's right knee degenerative arthritis and his ilio-tibial band syndrome, left knee. On remand, a VA knee examination should be scheduled which considers the Veteran's surgery and recovery period in scheduling a date for the examination. The matters are REMANDED for the following action: 1. Associate with the claims file updated private and VA treatment records, to include records related to the knee surgery the Veteran has reported is scheduled. 2. Following whatever recovery period is necessary after his knee surgeries, schedule the Veteran for a VA knee examination to ascertain the current nature and severity of his right knee degenerative arthritis and of his ilio-tibial band syndrome of the left knee. Consideration of temporary total evaluations may be required. 3. Then, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.