Case 22000463

H. N. SCHWARTZ · 2022 · Case ID: 22000463

GRANTED

Summary

The Veteran served from October 1968 to October 1971. This case was previously remanded for further development. The Veteran initially appealed the denial of a compensable rating for lung cancer with mild dysphagia post-radiation therapy and the denial of special monthly compensation. However, the Veteran subsequently withdrew both of these appeals. The Board found that the criteria for withdrawal were met and dismissed these issues for lack of jurisdiction. The primary issue before the Board was the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran was already in receipt of a 70 percent rating for PTSD. The Board reviewed VA examinations from September 2013, September 2014, August 2016, and April 2021, which noted the Veteran's anxiety, fear of public places, memory loss, difficulty adapting to stress, and impaired concentration. The Veteran's TDIU application indicated a history of maintenance work and two years of college education. The Board found that the Veteran's PTSD symptoms, including avoidance of social interaction, memory issues, and concentration difficulties, rendered him unable to secure and follow substantially gainful employment. Therefore, TDIU was granted for the entire appeal period.

Special Benefit

TDIU; SMC

Docket No.

16-60 551

Full Decision Text

Citation Nr: 22000463
Decision Date: 01/05/22 Archive Date: 01/05/22

DOCKET NO. 16-60 551
DATE: January 5, 2022

ORDER

The appeal for a compensable rating for lung cancer to include mild dysphagia post radiation therapy has been withdrawn.

The appeal for special monthly compensation has been withdrawn.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. On November 3, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal for a compensable rating for lung cancer is requested.

2. On November 3, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal for special monthly compensation is requested.

3. The Veteran is unable to secure and follow a substantially gainful occupation due solely to service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for a compensable rating for lung cancer to include mild dysphagia post radiation therapy by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of the appeal for special monthly compensation by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1968 to October 1971.

This case was previously before the Board in March 2021, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to a compensable rating for lung cancer to include mild dysphagia post radiation therapy

2. Entitlement to special monthly compensation

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 the present case, the appellant, through his authorized representative, has withdrawn the appeals for a compensable rating for lung cancer and special monthly compensation and, 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 it is dismissed.

3. Entitlement to a total disability rating based on individual unemployability (TDIU)

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran is in receipt of a 70 percent rating for PTSD for the entire period on appeal, which meets the schedular criteria. The record indicates that the Veteran stopped working in 2007 due to progression of his COPD, which is not service-connected. However, review of the Veteran's mental health records shows that his PTSD has made him unable to secure and follow a substantially gainful occupation.

In his September 2013 VA examination, the Veteran reported anxiety and fear with going to public places. At a September 2014 VA examination, the Veteran again stated that he had "no social life" because did not want to interact with people. The examiner noted that the Veteran had mild memory loss.

The Veteran received a VA examination in August 2016. The examiner noted that the Veteran suffered mild memory loss and had difficulty in adapting to stressful circumstances, including work or a worklike setting.

At his April 2021 VA examination, the examiner noted impairment of short and long term memory, impaired abstract thinking, and difficulty in adapting to stressful circumstances. The examiner further opined that the Veteran's difficulties with memory would make it difficult to follow up on assigned tasks and that his difficulties with concentration would affect his attention span.

The Veteran's Application for TDIU (VA Form 21-8940) states that he worked in maintenance from 1980 to 2007 and that he had two years of college education, with no additional training.

The Board finds that the Veteran has been unable to secure and follow a substantially gainful occupation due to his PTSD for the entire appeal period. He has reported avoidance of going in public and resistance to interaction with people, as well as memory loss and difficulty with concentration. This combination of symptoms prevent the Veteran from working. TDIU is granted.

In reaching this determination, we are aware of the recent award of 100 percent for a heart disability. However, the appeal for TDIU predates the award of the 100 percent evaluation. Therefore, the issue is not moot.

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Creegan, Amanda

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.

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