Citation Nr: 21021609 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-41 784 DATE: April 13, 2021 ORDER The appeal for an initial evaluation higher than 40 percent for bilateral sensorineural hearing loss has been withdrawn and is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. In March 2021, the Veteran submitted a written request to withdraw his appeal of the initial rating assigned for hearing loss. 2. The Veteran has only one service-connected disability of hearing loss, rated 40 percent disabling, and the evidence does not reflect that he is unable to secure and maintain substantially gainful employment due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an initial evaluation higher than 40 percent for bilateral sensorineural hearing loss by the appellant, warranting a dismissal, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1946 to April 1949. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision that granted service connection and an initial rating for hearing loss. The Board remanded the issues of a higher initial rating for hearing loss and entitlement to a TDIU, based on his request for a VA Form 21-8940 pertaining to a TDIU in May 2015, in May 2019 and June 2020. These issues were returned to the Board after a supplemental statement of the case (SSOC). Although the Board also previously remanded the issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), that issue has not been returned to the Board and may not be addressed at this time. As noted in the prior remands, the Veteran withdrew his initial request for a hearing in March 2019. Although the Veteran was previously represented by an agent, Philip L. Vanderhamm, he stated in a March 2021 letter that he wished to remove that agent as his representative; thus, there is no current representative. 1. Dismissal of appeal of initial rating assigned for bilateral hearing loss In a March 2021 correspondence, the Veteran clearly stated that he wished to withdraw his appeal for a higher rating than 40 percent for hearing loss and for service connection for PTSD. He requested that his disability compensation be adjusted to reflect his married status and living in the U.S., having returned from overseas. As noted above, the issue of PTSD is not currently before the Board. 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 by the appellant or his or her authorized representative 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. In the present case, the appellant has submitted a written withdrawal of the issue of an higher initial rating for hearing loss, as described above. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for this issue, and it is dismissed. 2. Entitlement to a TDIU Although the Board previously took jurisdiction over the issue of a TDIU as part and parcel of the appeal of the underlying rating for hearing loss, the Veteran did not clearly withdraw the appeal for entitlement to a TDIU. A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining unemployability, consideration should be given to prior education, training, and work experience, but not to age or any impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Pederson v. McDonald, 27 Vet. App. 276 (2015). Generally, a schedular percentage threshold must be met to be eligible for TDIU. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high disability rating in itself is a recognition that service-connected the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). Additionally, “substantially gainful employment” has economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. As noted above, the Veteran requested a VA Form 21-8940, in May 2015. That form requests information as to his employment and educational history, as well as what disabilities he believes result in being unemployable. As directed in the prior Board remands, the agency of original jurisdiction (AOJ) sent the Veteran the requested form and explained the requirements for a TDIU in a July 2019 letter, as well as requested him to identify any outstanding VA or private treatment records. The Veteran has not submitted a completed VA Form 21-8940 or any other information to support a TDIU claim. He did not respond to the July 2019 letter and declined to attend scheduled VA examinations to determine the current severity of his hearing loss and address his service connection claim for PTSD, despite attempts to scheduled examinations closer to his residence. Although the Veteran is unemployed, there is no indication that his hearing loss prevents him from securing or maintaining gainful employment consistent with his educational and occupational history. The initial October 2015 VA examination for hearing loss reflects difficulties hearing and understanding communication, particularly in a noisy environment and without hearing aids, due to severe to profound hearing loss bilaterally. Private treatment records in 2015 advised the use of a hearing aid. These impacts are contemplated by his 40 percent rating. There is no indication that he stopped work or is unable to work due to hearing loss. An October 2017 private medical report reflects that he needs regular aid and attendance from another person to assist with various daily activities. However, the affected activities do not suggest that his hearing loss results in that need, so as to suggest the requisite work impact for a TDIU. Instead, the report states that the Veteran has physical or mental incapacity, but does not mention hearing loss. In summary, the evidence does not establish entitlement to a TDIU. There is no reasonable doubt to be resolved in the Veteran’s favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.