Citation Nr: 21039925 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-39 880 DATE: July 1, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to a total disability due to individual unemployability is granted. FINDINGS OF FACT 1. At his April 2021 Board hearing and prior to the promulgation of a decision, the Veteran verbally withdrew his PTSD claim. 2. From August 23, 2016, the Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a rating in excess of 50 percent for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. From August 23, 2016, the criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1972. In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2018, the Board remanded the claim for further development. Dismissal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his Board hearing, the Veteran withdrew his appeal for entitlement to a rating in excess of 50 percent for PTSD. The Board finds that the Veteran has withdrawn the appeal as to this issue. Therefore, there remain no allegations of errors of fact or law for appellate consideration on this matter. Accordingly, the Board does not have jurisdiction to review this issue, and the identified issue is dismissed. Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis The Veteran contends that his service-connected disabilities preclude him from securing or following substantially gainful employment. Under Rice v. Shinseki, 22 Vet. App. 477 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased rating claims when the issue of unemployability either is raised expressly or by the record. See also Hurd v. West, 13 Vet. App. 449 (2000); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009); see also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). In a December 2014 statement, the Veteran's physician stated that the Veteran was unemployable due to his service-connected disabilities. The Board notes that although the issue of TDIU was raised in the December 2014 statement, during his Board hearing, the Veteran stated that he was seeking entitlement to TDIU effective August 23, 2016, i.e., the effective date of his heart condition. He stated that if TDIU was granted effective August 23, 2016, he would consider this a full grant of benefits. From August 23, 2016, the Veteran was service-connected for coronary artery disease (CAD) rated at 30 percent effective August 23, 2016 and 60 percent effective October 30, 2019; PTSD rated at 50 percent effective July 21, 2014; bilateral hearing loss rated as noncompensable from August 31, 2010; and tinnitus and atrial fibrillation each rated at 10 percent effective August 23, 2016. His combined rating was 70 percent effective August 23, 2016 and 80 percent effective October 30, 2019. The Veteran meets the threshold requirement for TDIU. 38 C.F.R. § 4.16(a). In May 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his heart conditions. The examiner stated that the Veteran had had congestive heart failure (CHF), constant atrial fibrillation, constant sick sinus syndrome, and has chronic CHF. The Veteran also had non-surgical or surgical procedures to include an angioplasty and a cardiac pacemaker implanted. The Veteran's METs level was >5-7. The examiner noted that this METs level was found to be consistent with activities such as walking one flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). The Veteran's heart conditions impacted his ability to work. The examiner stated that the Veteran should not perform strenuous exertion but only light activities. In February 2018, the Veteran was afforded a VA examination to determine the severity of his bilateral hearing loss and tinnitus. The Veteran stated that he had difficulty hearing even when wearing his hearing aids. Because of this, he found himself avoiding conversations. He stated that his tinnitus was frustrating especially when it became louder. The Veteran's disabilities impacted his ability to work. In September 2019, the Veteran was afforded a VA examination to determine the severity of his PTSD. The Veteran's symptoms included chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran's lifestyle was fairly isolated, and he spent most of his time alone at his home. The Veteran experienced occupational and social impairment with reduced reliability and productivity. During his April 2021 Board hearing, the Veteran stated that he worked as a machinist for 35 years. He stated that he retired early because he was becoming increasingly irritable with his coworkers. He also stated that he was having trouble coping with other things at work. He did not interact with his coworkers and kept to himself. He did not have friends. The Veteran also stated that, due to his CAD, he had no stamina; experienced shortness of breath, pain, and fatigue, and was occasionally light-headed. Based on the evidence of record, the Board finds that the Veteran's disabilities preclude him from all forms of employment. The Board notes that, although outside the period on appeal, the Veteran's December 2014 physician stated that the Veteran was unemployable due to his service-connected disabilities. During this period on appeal, the Veteran's heart conditions, with symptoms that included lack of stamina, shortness of breath, pain, and fatigue, and occasional light-headedness prevented any labor-intensive employment. Furthermore, the service-connected PTSD, with symptoms that included chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships would preclude the Veteran from office type sedentary employment. When considering the Veteran's employment as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. As such, the Board concludes that from August 23, 2016, TDIU is warranted under 38 C.F.R. § 4.16(a). The Board notes that the TDIU grant is a full grant of the benefit sought on appeal. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.