Citation Nr: 21022145 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 11-23 274 DATE: April 14, 2021 ORDER Prior to July 31, 2020, entitlement to a rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD), and a rating higher than 70 percent thereafter, is dismissed. For the rating period prior to December 2, 2014, entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In November 2020, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, withdrew his appeal for a rating higher than 50 percent prior to July 31, 2020, and a rating higher than 70 percent thereafter, for the service-connected PTSD. 2. Prior to December 2, 2014, the Veteran was substantially and gainfully employed full time, and the employment was neither marginal nor in a protected environment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the rating for PTSD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Prior to December 2, 2014, the criteria for a TDIU are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to November 1968, to include service in the Republic of Vietnam for which he received a bronze star medal. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As a procedural history, while the claim was on remand, a TDIU was granted effective December 2, 2014. See September 2020 rating decision. An additional September 2020 deferred rating decision, issued on the same day, indicated that this was a full grant of the TDIU claim on appeal. Nevertheless, the grant of a TDIU effective December 2, 2014 is only a partial grant because the Veteran could still be seeking a TDIU prior to December 2, 2014, as it is part and parcel of the underlying increased rating claim for PTSD. See 38 C.F.R. § 3.400(o)(2); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). A partial TDIU grant does not bifurcate an appeal for TDIU. Harper v. Wilkie, No. 16-3519 (Vet. App. Dec. 6, 2018). Thus, the issue of entitlement to a TDIU prior to December 2, 2014 remains before the Board. The Veteran’s attorney submitted the Veteran’s written withdrawal of the appeal for higher ratings for the service-connected PTSD disability in November 2020. In December 2020, a few days later, the Veteran’s attorney submitted a motion to withdrawal, citing it would be impossible, impractical, or unethical to continue representation under 38 C.F.R. § 20.608. He copied the Veteran on this correspondence. In a March 2021 letter, the Board notified the Veteran that it had received the Veteran’s attorney’s motion to withdraw. The letter informed the Veteran that if he did not contact the Board within thirty days of the March 2021 letter to appoint a new representative, the Board would proceed with the remaining claim on appeal with the Veteran as a pro se claimant. As of the date of this decision, the Veteran has not contacted the Board to appoint a new representative or to clarify that the prior attorney continues to represent him. Therefore, the Board will proceed with a decision with the Veteran representing himself pro se. Preliminary Matters As an initial matter, the Board received additional VA promulgated evidence after the most recent supplemental statement of the case. In December 2020, the Board requested that the Veteran waive initial review by the agency of original jurisdiction of this additional evidence, to which the Veteran did not respond. Of note, the additional VA treatment record after the most recent SSOC was only relevant to the increased rating claim for PTSD, which has now been withdrawn. This additional record is not relevant to the claim for a TDIU prior to December 2, 2014 as it did not pertain to the limited period on appeal; thus, the Board will proceed to adjudicate the claim. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Prior to July 31, 2020, entitlement to a rating higher than 50 percent, and a rating higher than 70 percent, thereafter, is dismissed. The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In December 2020, prior to the promulgation of a decision in this appeal, the Veteran, through his attorney, withdrew the appeal for higher ratings for the service-connected PTSD. The withdrawal of this issue was clear and unequivocal. As there remain no allegations of errors of fact or law for appellate consideration as to these claims, and the procedural requirements of 38 C.F.R. § 19.55 have been satisfied, the Board does not have jurisdiction to review this claim, and it is dismissed. 2. Prior to December 2, 2014, entitlement to a TDIU is denied. In an August 2017 brief, the Veteran’s attorney first asserted that the Veteran was unable to obtain and maintain substantially gainful employment as of November 2014. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation resulting from a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to December 2, 2014, the Veteran was service-connected for PTSD (rated as 50 percent disabling, effective April 8, 2009); diabetes mellitus (rated at 20 percent disabling, effective April 29, 2008); right lower extremity peripheral neuropathy (rated at 10 percent disabling, effective April 29, 2008); left lower extremity peripheral neuropathy (rated at 10 percent disabling, effective April 29, 2008), for a total combined disability rating of 70 percent effective April 8, 2009. Thus, the Veteran met the schedular criteria for a TDIU prior to December 2, 2014. VA treatment records report the Veteran was working as a fuel contractor and truck driver until he retired in November 2014. See, e.g., October 2013, April 2014, July 2014, December 2014, and June 2015 VA treatment records and May 2015 VA examination report. In a July 2018 TDIU application, the Veteran indicated that his most recent employment was as a CDL fuel truck driver for an aviation company from July 2002 to December 1, 2014. He worked 40 hours a week, with 28 weeks lost from illness, and a highest gross monthly income of $12,200 per month. The last day he worked full time was December 1, 2014. On review of the evidence, both lay and medical, the Veteran was substantially and gainfully employed until December 1, 2014. There is no evidence that this employment was less than substantially gainful or in a protected environment. As he was gainfully employed until December 1, 2014, his service-connected disabilities clearly did not render him unable to secure and follow gainful employment in a variety of settings before that date. Further, there are no unusual or exceptional service-connected disability factors present. A TDIU is not warranted when the Veteran is employed in gainful and substantial employment, and the claim for a TDIU prior to December 2, 2014 is denied. Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.