Citation Nr: 21008271 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-01 071 DATE: February 12, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. On July 2020, the Board issued a decision that, in pertinent part, noted the Veteran elected to withdraw his TDIU claim from the Legacy appeal process by filing a completed VA Form 10182 at the AOJ in November 2019 in which he elected the modernized review system. 2. Subsequently, the Board noted correspondence that appeared to be continuation of representation by the Veteran’s attorney as well as indication that the issue of TDIU should be adjudicated on its merits received prior to that date. 3. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The July 15, 2020 Board decision, insofar as it noted the Veteran elected to withdraw his TDIU claim from the Legacy appeal process, is vacated. 38 U.S.C. § 7104(a)(2012); 38 C.F.R. § 20.904 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1967 to August 1969 in the U.S. Army, including in combat in the Republic of Vietnam. He also had active service from September 1980 to May 1983 in the U.S. Navy. Partial Vacatur The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board’s own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a)(2012); 38 C.F.R. § 20.904 (2019). As stated above, the Board’s July 15, 2020 denial of the Veteran’s election to withdraw his TDIU claim from the Legacy appeal process was issued despite correspondence that appeared to be continuation of representation by the Veteran’s attorney as well as indication that the issue of TDIU should be adjudicated on its merits received prior to that date. Accordingly, the Board, on its own motion, has determined that the July 15, 2020 Decision indicating the Veteran elected to withdraw his TDIU claim from the Legacy appeal process should be vacated and a new decision should be issued in its place. However, it is critical to note that the other determinations in the July 15, 2020 decision (addressing the denial of service connection for obstructive sleep apnea, chronic obstructive pulmonary disease, and nephrolithiasis; and a denial for an increased rating for bilateral hearing loss) remain undisturbed by this vacatur. Entitlement to TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2019). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has met the schedular requirements for a TDIU rating as set forth in 38 C.F.R. § 4.16 (a) from August 16, 2017, to March 13, 2019 with his service-connected posttraumatic stress disorder (PTSD) at 50 percent disabling, bilateral hearing loss at 40 percent disabling, and tinnitus at 10 percent disabling. In his February 2011 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated he last worked in June 2009 as a salesman and his highest level of education was 4 years of high school. In his October 2017 VA Review PTSD examination, the Veteran noted that he had not been employed since 2011. In the October 2017 VA Hearing Loss examination, the examiner noted that Veteran’s hearing loss impact on his ability to work as “He has difficulty carrying on a conversation and clarity is very difficult.” The remaining evidence of record during this period is silent for any discussion regarding the impact of the Veteran’s service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The evidence does not show or suggest that the Veteran’s service-connected PTSD, bilateral hearing loss, or tinnitus render him unable to secure or follow a substantially gainful occupation, given his work experience and education. Indeed, the October 2017 examiner only found that the Veteran has difficulty carrying on a conversation and clarity is very difficult. Thus, the evidence of record does not suggest his PTSD, bilateral hearing loss, or tinnitus, either individually or cumulatively, rendered him unable to secure, or engage in, substantially gainful occupation during the appeal period in question. Further, the evidence of record does not indicate that the Veteran cannot engage in sedentary employment. Accordingly, the preponderance of the evidence is against the claim for a TDIU and such rating is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.