Citation Nr: 21032452 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-10 929 DATE: May 27, 2021 ORDER The appeal involving entitlement to service connection for a disability manifested by nosebleeds is dismissed. The appeal involving entitlement to service connection for a skin disorder is dismissed. Entitlement to total disability rating based on individual unemployability (TDIU) is granted from July 16, 2012. The appeal involving entitlement to increased ratings for mild neurocognitive disorder, cervical spine, left upper extremity, left lower extremity, migraine headaches, hypertension, and lumbar spine disabilities is dismissed. FINDINGS OF FACT 1. During the March 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew his appeal as to the issues of entitlement to service connection for nosebleeds and a skin disorder. 2. Since July 16, 2012, the Veteran's service-connected mild neurocognitive disorder has rendered him unable to secure or follow a substantially gainful occupation. 3. There remains no question of law or fact involving the claims of entitlement to increased ratings for mild neurocognitive disorder, cervical spine, left upper and left lower extremities, headaches, hypertension, and lumbar spine disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran are met regarding his appellate claims of service connection for nosebleeds and a skin disorder. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The criteria for a TDIU are met from July 16, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a). 3. There being no case or controversy as to the claim of entitlement increased ratings for mild neurocognitive disorder, cervical spine, left upper extremity, left lower extremity, migraine headaches, hypertension, and lumbar spine disabilities, the appeal as to these issues is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Unites States Army from February 1981 to December 1986 and November 1987 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned. 1. The appeal as to the issues of entitlement to service connection for a disability manifested by nosebleeds and a skin disorder are dismissed. The Board may dismiss any appeal that fails to allege a 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, and withdrawal may be made by the appellant or by his or her authorized representative in writing or on the record during a hearing before the Board. 38 C.F.R. § 19.55. On the record during the March 2021 Board hearing, the Veteran, through counsel, withdrew the issue of entitlement to service connection for a disability manifested by nosebleeds and a skin disorder. The undersigned clearly identified the withdrawn issues and explained that by withdrawing his appeal he would not be entitled to disability compensation for a disability manifested by nosebleeds or a skin disorder. The Veteran's attorney and the Veteran affirmed that he was requesting a withdrawal as to the appealed issues. See March 2021 Board Hearing at 2. Thus, the Board finds that the Veteran has withdrawn these issues explicitly, unambiguously, and with a full understanding of the consequences. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there is no remaining allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review it, and it is dismissed. 2. Entitlement to a TDIU is granted from July 16, 2012 to March 25, 2014. The Veteran asserts that he is entitled to TDIU benefits throughout the appeal period. The Board notes that the Veteran has been awarded a TDIU, effective March 25, 2014. The Veteran's TDIU claim is part and parcel of his underlying increased rating claim for his back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, pursuant to Harper v. Wilkie, the issue of TDIU remains in appellate status from July 16, 2012, in conjunction with the claim for an increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Throughout the appeal period, beginning on July 16, 2012, the Veteran has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). The Veteran is service-connected for a neurocognitive disorder, a lumbar spine disability, cervical spondylosis, left upper extremity residuals, left lower extremity residuals, hypertension, gastroesophageal reflux disease, and headaches. Thus, the main question before the Board is whether the Veteran's service-connected disabilities render him unable to obtain substantially gainful employment. The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In his March 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he worked as a systems administrator from 2005 until January 2012. He further indicated that he was no longer able to perform the physical and mental demands of gainful employment. There is no evidence that the Veteran was engaged in substantial and gainful employment during the appeal period. This is in accord with the economic component of entitlement to a TDIU, beginning July 16, 2012. Regarding the noneconomic component, the Veteran's educational background includes two years of college with no additional training or education. Id. The Board notes that the Social Security Administration (SSA) found that the Veteran has been disabled, or unable to engage in any substantial gainful activity by reason of physical and mental impairment, since August 18, 2011. A May 2013 disability determination by the SSA lists disorders of the back (discogenic and degenerative) as a primary diagnosis and late effects of cerebrovascular disease as a secondary diagnosis. In an April 2013 SSA decision, the administrative law judge (ALJ) concluded that although the Veteran worked after his stroke, it was an unsuccessful work attempt that did not constitute substantially gainful employment. Further, in issuing the positive decision, the ALJ took into account the Veteran's progressive memory loss, fatigability, short-term memory impairment, and cognitive disturbances. The ALJ relied on a January 2013 psychological consultation that noted the Veteran's difficulty sustaining concentration, persistence, and pace to timely complete assigned tasks, difficulty interacting with peers and supervisions, and difficulty adapting to the stress of a typical work environment. A February 2012 private treatment record notes the Veteran report of difficulty meeting home, work, or social obligations. He further reported experiencing anxiety, fearful thoughts, irritable mood, loss of energy, and poor concentration. The December 2013 VA examiner determined that the Veteran's mental health disability caused occupational and social impairment with reduced reliability and productivity. See also July 2014 VA examination report. During the examination, the Veteran endorsed overwhelming anxiety, anxiety attacks characterized by hyperventilation, and mild memory loss. During the March 2014 VA examination, the Veteran reported that he forgets recent events, conversations, words when talking, and daily tasks. The March 2014 examiner determined that the Veteran's mental health symptoms included mild memory loss, impairment of short and long-term memory, and difficulty in understanding complex commands. Notably, the July 2014 VA examiner determined that the Veteran's neurocognitive disorder rendered him unable to perform physical and sedentary employment due to his symptoms of memory loss, trouble concentrating, and impaired judgment. Given these findings, including the Veteran's competent and credible reports, the Board finds that the overall severity of the Veteran's mild neurocognitive disorder described above precludes substantially gainful employment, throughout the appeal period, beginning July 16, 2012. Hence, entitlement to a TDIU is warranted from July 16, 2012. 38 U.S.C. §§ 1155, 5107(b). 3. The appeal involving entitlement to increased ratings for mild neurocognitive disorder, cervical spine, left upper extremity, left lower extremity, migraine headaches, hypertension, and lumbar spine disabilities is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Herein, the Veteran has been awarded entitlement to a TDIU beginning July 16, 2012. The Veteran and his representative have clearly expressed an intent to limit the appeal regarding the ratings assigned to his neurocognitive disorder, cervical spine, left upper extremity, left lower extremity, migraine headaches, hypertension, and lumbar spine disabilities, if a TDIU was awarded for the entire appeal period. See March 2021 Board Hearing at 3-5. Accordingly, as the requested TDIU has been awarded over the entirety of the appeal period, the Veteran's appeal as to these matters has been rendered moot, and there is no case or controversy to be resolved. Therefore, the appeal is dismissed. 38 U.S.C. §7105(d)(5); 38 C.F.R. § 20.202. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.