Citation Nr: 21022207 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-15 682 DATE: April 15, 2021 ORDER Entitlement to a rating in excess of 10 percent for hepatitis C is dismissed. A total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. On September 14, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that requested a withdrawal of the appeal to his claim for an increased rating for hepatitis C. 2. The competent evidence of record shows that the Veteran is unable to obtain and maintain substantially gainful employment due to service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of that appeal for an increased rating for hepatitis C by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an award of a TDIU are met. 38U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) from decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been remanded by the Board in May 2015, September 2016, and September 2019 for additional development. 1. Entitlement to a rating in excess of 10 percent for hepatitis C 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. 38 C.F.R. § 19.55. On September 14, 2019, the Veteran withdrew his appeal of the issue of entitlement to a rating in excess of 10 percent for service connection hepatitis C. The statement was signed, and included his name and VA file number, as required per 38 C.F.R. § 19.55(b). See Hembree v. Wilkie, 33 Vet. App. 1 (2020) (holding that, unlike an oral withdraw at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant, but needs to comply with the applicable regulation). In the present case, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is dismissed.   2. Entitlement to a TDIU The Board notes that the Veteran meets the criteria for consideration for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board notes that the Veteran’s Application for Increased Compensation Based on Unemployability received in July 2012 shows the Veteran last worked in in June 2010 in the field of maintenance. He reported a work history of providing maintenance for hotels, motels, apartments, and mobile home parks. He also reported that he had graduated high school and stopped working due to his disability. He indicated his service-connected PTSD and hepatitis C prevented him from being employable. A January 2011 VA PTSD examination report shows that the Veteran had worked as a maintenance man for two different companies and for a cable company but had a poor relationships with his supervisor and co-workers. During employment, he had problems consisting of an inability to get along with coworkers. The examiner also noted that since the Veteran developed his mental condition there had been major changes of his daily activities due to a short fuse, quick temper, and is easily irritated and could not hold a job. Mental status examination showed impaired attention and focus, and difficulty focusing on simple things. Thought process were appropriate; he was able to understand directions, slowness of thoughts were not assessed; judgement was not impaired; abstract thinking was normal; memory was impaired to a mild degree. The examiner noted that the Veteran has difficulty trusting people and it was hard for him to build occupational and social relationships. The examiner assessed the Veteran’s PTSD has causing occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking, and mood, cause by his difficulty in adapting to stressful circumstances including a work and worklike settings. Additionally, the examiner indicated that the Veteran has a short fuse, quick temper, and is easily irritated making it difficult for him to hold a job. Indeed, the Veteran did not get along well with other in a work environment and had difficulty completing tasks due to irritation. In a statement dated in August 2019, the Veteran reported that he had completed the 11th grade and did not obtain a GED or other vocational training. He reported that he last worked in 2010 but had problems with getting along with coworkers and supervisors. He reported a history of previous employment where he would get fired due to his inability to have good relationships with his coworkers. He reported that due to his PTSD, he had mainly stayed away from people on his range and had depression to the point that he would have suicidal thoughts. He reported a difficulty with maintaining attention and concentration including forgetting things his wife tells him to do. The Veteran also reported that he had major issues with sleep that resulted in fatigue and irritability. Overall, he reported that he had a hard time getting along with anyone and did not feel he could function in a work environment. After a review of the evidence of record, the Board notes that the Veteran has been unemployed since approximately June 2010. In light of the Veteran’s occupational background and the functional limitations described, the Board finds that the evidence supports that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of the symptoms of this PTSD. In so finding, the Board looks in particular to the January 2011 VA examination report, which concluded that the Veteran’s service-connected PTSD in particular caused significant impairment regarding his employment, as well as the August 2019 statement submitted by the Veteran describing his difficulties maintaining gainful employment. Additionally, the Veteran has primarily worked in the maintenance field and he indicated that he lacked a GED or any additional vocational training. Based on the totality of the competent evidence, a TDIU is warranted. 38 C.F.R. § 4.16(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.