Citation Nr: 21022281 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-57 984 DATE: April 15, 2021 ORDER Entitlement to service connection for narcolepsy is dismissed. Entitlement to a rating higher than 50 percent for obstructive sleep apnea is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, in February 2021 correspondence, the Veteran withdrew his appeal for entitlement to service connection for narcolepsy as well as an increased rating for obstructive sleep apnea. 2. The evidence supports a finding that the Veteran’s service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for narcolepsy by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of a rating higher than 50 percent for obstructive sleep apnea by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his November 2017 appeal to the Board, the Veteran requested a Board videoconference hearing. Subsequently, in a November 30, 2020 phone call, the Veteran’s counsel, on behalf of the Veteran, requested that the Board hearing be cancelled. As such, the Veteran’s request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704 (e). In December 2020, these matters were remanded for further development. 1. Entitlement to service connection for narcolepsy 2. Entitlement to a rating higher than 50 percent for obstructive sleep apnea 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In February 2021 correspondence, the Veteran knowingly withdrew his appeal as to the issues of entitlement to service connection for narcolepsy as well as an increased rating for obstructive sleep apnea. 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 and this issue is dismissed. 3. Entitlement to a TDIU The Veteran asserts that he is unable to engage in substantially gainful employment due to his service-connected disabilities. Giving the Veteran the benefit of the doubt, the Board finds his service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Board finds the evidence currently of record is sufficient to support a TDIU grant. The Veteran is service connected for a psychiatric disability rated at 50 percent, obstructive sleep apnea at 50 percent, gastrointestinal disability at 10 percent, and a right knee disability as noncompensable. His combined rating is 80 percent. He meets the schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). The Veteran submitted a VA Form 21-8940 in December 2016. He has a high school education. He reported that he last worked full-time in May 2014. He stated that his service-connected disabilities and particularly his psychiatric and sleeping disabilities became too disabling to continue working. The Board observes that he last worked as a Deputy Sheriff. In a private November 2020 vocational assessment report, the examiner indicated, in part, that in considering the evidence of record as it relates to limitations of the Veteran’s service-connected anxiety disorder and obstructive sleep apnea, it is at least as likely as not the Veteran has been unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least 2014 to the present. Although there is a favorable medical opinion that addresses whether the Veteran’s service-connected disabilities render him unemployable, the Board notes that decision of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has the ultimate authority to decide whether the Veteran is employable. Given the Veteran’s physical and mental impairment, and his background, including educational history and past employment, and giving him the benefit of the doubt, the Board finds that his service-connected disabilities precludes most employment. A TDIU is granted. The Board will allow the RO to assign the appropriate effective date when it implements this decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.