Citation Nr: 1702397 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 08-37 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to March 1972, from February 1988 to August 1992, and from April 2006 to April 2007. This appeal is before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, the Board remanded the Veteran's appeal with instruction to provide notice to the Veteran and assist in development with regards to his newly raised claim of entitlement to TDIU. Appropriate notice was provided via letter in November 2013, but the Veteran failed to respond or provide any additional evidence aside from attendance at scheduled VA examinations. The Board is therefore satisfied that the instructions in its October 2013 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the period on appeal, the Veteran has been in receipt of a schedular 100 percent rating and special monthly compensation under 38 U.S.C.A. § 1114(s). CONCLUSION OF LAW No further compensation is available to the Veteran by awarding a TDIU, and the appeal is therefore dismissed as moot. 38 U.S.C.A. §§ 1114(s), 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.350(i), 4.15, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board is entitlement to TDIU. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d. It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where the veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). The Board finds that a TDIU award cannot, as a matter of law, be the basis of any additional compensation. For the entirety of the appeal period and since separation from his last period of active duty, the Veteran has been in receipt of a 100 percent schedular rating for posttraumatic stress disorder (PTSD) as well as SMC under 38 U.S.C.A. § 1114(s). The only reason that TDIU may be awarded to a claimant who already is in receipt of a schedular 100 percent rating is the potential that it may qualify him or her for additional SMC. A claimant who is already in receipt of SMC under 38 U.S.C.A. § 1114(s), however, cannot receive additional SMC on the basis of increased ratings. Furthermore, the Board notes that in November 2013 the Veteran was sent VA Form 21-8940 requesting information on his employment history and education. The Veteran never replied. Indeed, the Board took jurisdiction over an implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and the Veteran has never provided any explicit claim for additional compensation on the basis of employability. For these reasons, the Board finds as a matter of law that no further compensation is available to the Veteran by awarding a TDIU, and the appeal is therefore dismissed as moot. As there is no issue of fact and resolution of this claim is wholly dependent on interpretation of the applicable laws and regulations, VA's duty to notify and assist are deemed met. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). ORDER The claim for a TDIU is dismissed as moot. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs