Citation Nr: 21042144 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 94-36 518 DATE: July 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) effective June 18, 1983, on an extraschedular basis is granted. Entitlement to an initial rating greater than 10 percent for a right knee disability, including on an extraschedular basis, is dismissed. Entitlement to an initial rating greater than 10 percent for a left knee disability, including on an extraschedular basis, is dismissed. FINDINGS OF FACT 1. The record evidence shows that service connection is in effect for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling effective November 16, 1992, degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling effective June 18, 1983, a left shoulder disability, evaluated as 10 percent disabling effective June 14, 2000, and as 20 percent disabling effective January 15, 2015, a right knee disability, evaluated as 10 percent disabling effective June 18, 1983, a left knee disability, evaluated as 10 percent disabling effective June 18, 1983, tinnitus, evaluated as 10 percent disabling effective June 18, 1983, radiculopathy of the right lower extremity, evaluated as 10 percent disabling effective November 27, 2006, a right lateral thigh scar, evaluated as zero percent disabling effective October 27, 1993, and for erectile dysfunction, evaluated as zero percent disabling effective April 11, 2011; the combined disability evaluation for compensation is 40 percent effective June 18, 1983, 70 percent effective November 16, 1992, 80 percent effective June 14, 2000, and 80 percent effective November 27, 2006. 2. The record evidence reasonably supports finding that the Veteran was precluded from securing or maintaining substantially gainful employment solely as a result of his service-connected disabilities effective June 18, 1983, the day after the date of his discharge from active service. 3. The record evidence shows that, in statements included in a May 2021 appellate brief, prior to the promulgation of a decision in this appeal, the Veteran's attorney stated that, if the Board granted a TDIU effective June 18, 1983, on an extraschedular basis, the appeal for higher initial ratings for service-connected bilateral knee disabilities, including on an extraschedular basis, would be withdrawn; this withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. CONCLUSIONS OF LAW 1. The criteria for a TDIU effective June 18, 1983, on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(b) (2019). 2. The claim of entitlement to an initial rating greater than 10 percent for a right knee disability, including on an extraschedular basis, is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2019). 3. The claim of entitlement to an initial rating greater than 10 percent for a left knee disability, including on an extraschedular basis, is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 21, 1979, to June 17, 1983. This appeal has a long and complicated procedural history. Most recently, the Board denied the Veteran's higher initial rating claims for a right knee disability and for a left knee disability in April 2020. Both the Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in February 2021, vacating and remanding the Board's April 2020 decision. The Board is bound by the Court's February 2021 Order granting the Joint Motion. Having reviewed the record evidence, to include the Joint Motion, the Board finds that the issues on appeal should be characterized as stated above. The Board notes that, in a May 2021 appellate brief, the Veteran's attorney argued that, if VA granted entitlement to a TDIU effective on June 18, 1983 (the day after the date of the Veteran's discharge from active service), on an extraschedular basis, consideration of higher initial ratings for his service-connected bilateral knee disabilities would be moot. This effectively withdrew the appeal as to these claims. As discussed below, the Board is granting a TDIU effective June 18, 1983. Having reviewed the attorney's May 2021 argument, and as also discussed below, the Board is dismissing the higher initial rating claims for bilateral knee disabilities as withdrawn. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2019). Because the Veteran currently lives in Florida, the RO in St. Petersburg, Florida, has jurisdiction in this appeal. Increased Rating 1. Entitlement to a TDIU effective June 18, 1983, on an extraschedular basis The Board finds that the evidence supports granting the Veteran's claim of entitlement to a TDIU effective June 18, 1983, on an extraschedular basis. The Veteran essentially contends that his service-connected disabilities, in combination, have precluded his employability since June 18, 1983, the day after the date of his discharge from active service. The Board agrees. The record evidence shows that a TDIU currently is in effect from November 16, 1992, the day that the Veteran met the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2019). It also shows that, although he did not meet the schedular criteria prior to November 16, 1992, he has been unable to secure or follow any substantially gainful occupation since his discharge from active service. A review of a VA Form 3230 dated on August 5, 1992, and included in the claims file shows that the Veteran was on a VA vocational rehabilitation work-study ("W/S") program at that time. The record evidence also suggests that he received additional VA vocational rehabilitation services intermittently in the decades since his service separation, including from December 1992 to January 1993, February to March 1993, August to October 1994, and in November 1997. He reported on a June 1998 VA Form 21-8940 (formal TDIU claim) that his "mental + physical condition" prevented him from securing or following any substantially gainful occupation. His service-connected disabilities affected his full-time employment in 1983 and he last worked in 1984 as a janitor. He became too disabled to work in 1998. He had tried to obtain employment from a "tem[p] service" since becoming too disabled to work. He had a general equivalency degree (GED). He received pre-apprenticeship training as a union carpenter in 1977 and 1978. He was unable to concentrate due to a "bad back [and] painful joints." He subsequently reported on a March 2003 VA Form 21-8940 that his service-connected PTSD, degenerative disc disease of the lumbar spine, and bilateral knee disabilities prevented him from securing or following any substantially gainful occupation. These disabilities affected his employability on August 1, 1983, when he became too disabled to work. He last worked for a temporary employment agency as a driver from February to October 2001. He left his last job due to his disability. He had a GED and receiving training as a union carpenter. The Director, Compensation Service (Director), concluded in an undated decision associated with the claims file in August 2017 that the criteria for an extraschedular TDIU were met prior to May 1998 (the date that a TDIU was in effect at that time). The Director found that the symptomatology associated with the Veteran's service-connected PTSD prior to May 1998 included multiple psychiatric hospitalizations and treatment for ongoing mental health problems. She concluded: [The record evidence] sufficiently demonstrates that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected post-traumatic stress disorder (PTSD) prior to May 4, 1998. In this regard, it is noted that the record documents several psychiatric admissions to VA medical centers, and VA examiners have indicated there is moderate to severe social and occupational impairment from the Veteran's post-traumatic stress disorder. Therefore, we have determined this condition rendered the Veteran incapable of substantially gainful activity. The Board agrees with the Director's findings concerning the Veteran's entitlement to a TDIU on an extraschedular basis. In addition to the evidence discussed in the Director's decision, the Board notes that, on VA examination in March 1994, the Veteran denied having any occupational history since his service separation. He reported difficulty holding on to a job since his service separation. A history of multiple psychiatric hospitalizations in multiple states also was reported. He subsequently reported on VA mental disorders examination in January 1998 that he had been unemployed since approximately 1987 and was unable to work due to ongoing problems with stress and anger. The VA examiner concluded that the Veteran's symptoms were consistent with a diagnosis of PTSD. On subsequent VA PTSD examination in August 2000, the VA examiner concluded that the Veteran's "degree of inability to work at this time is also severe" as a result of his service-connected PTSD. The Veteran has reported consistently that his service-connected disabilities, in combination, precluded his employability since his discharge from active service. The record evidence, to include the Director's decision, persuasively suggests that he has been unable to secure or follow a substantially gainful occupation since his discharge from service. It is undisputed that he did not meet the schedular criteria for a TDIU prior to November 16, 1992. See 38 C.F.R. § 4.16(a) (2019). The Board acknowledges here that his post-service employment history generally is unclear from a review of the record evidence. For example, he has reported consistently to his VA examiners that he had difficulty holding down a job since service. Despite these reports, his voluminous post-service VA and private outpatient treatment records suggest that he has been employed occasionally (but never for very long) in the decades since his service separation. There also are scattered indications in the record that he participated in a VA vocational rehabilitation work-study program on more than one occasion and may have been employed for a time in a housekeeping job at a VA facility. Regardless of his precise post-service employment history, the medical evidence consistently demonstrates that his service-connected disabilities, in combination, resulted in severe occupational impairment since his service separation. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU effective June 18, 1983, on an extraschedular basis have been met. 2. Entitlement to initial ratings greater than 10 percent for a right knee disability and for a left knee disability, each including on an extraschedular basis, is dismissed 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. Id. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). As noted in the Introduction, the Veteran's attorney submitted an appellate brief in support of this appeal to the Board in May 2021. She presented detailed argument as to the Veteran's entitlement to a TDIU effective June 16, 1983 (the day after the date of his discharge from active service) on an extraschedular basis. She requested appellate relief from the Board in either granting TDIU effective June 16, 1983, on an extraschedular basis or, alternatively, remanding this claim for another decision from the Director on this matter. She concluded that, if the Board granted a TDIU effective June 16, 1983, on an extraschedular basis, consideration of higher initial ratings for the service-connected bilateral knee disabilities would be "moot." The Board observes here that this argument persuasively suggests that, because it granted a TDIU effective June 16, 1983, on an extraschedular basis (as discussed above), the Veteran, through his attorney, requested that his appeal for higher initial ratings for service-connected bilateral knee disabilities be withdrawn because it is moot. The Board finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he has pursued his extraschedular TDIU claim for many years. The Board also finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he was represented by his attorney when he withdrew his appeal for higher initial ratings for his service-connected bilateral knee disabilities in the May 2021 appellate brief which his attorney submitted on his behalf. Having reviewed the record evidence, the Board finds that withdrawal of these claims was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the claims of entitlement to initial ratings greater than 10 percent for a right knee disability and for a left knee disability, each including on an extraschedular basis, are dismissed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.