Citation Nr: 1805222	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  07-31 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

Entitlement to total disability based upon individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel







INTRODUCTION

The Veteran had active duty service from January 1975 to August 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and April 2009 rating decisions from Department of Veterans Affairs (VA) Regional Offices (ROs).

In a May 2010 and June 2017, the Board remanded this issue for additional development.

Notably, in a December 2017 rating decision, the Appeals Management Center (AMC), granted an increased 100 percent disability rating for the Veteran's service-connected major depressive disorder, effective August 16, 2007, which is the effective date of the award of service connection.  The AMC also granted a separate 20 percent evaluation for left knee instability, effective December 12, 2005; established basic eligibility to Dependents Educational Assistance (DEA), effective August 16, 2007, and dismissed the Veteran's claim for a TDIU from August 16, 2007 as moot.

In December 2017, the AMC also issued a supplemental statement of the case (SSOC) regarding the issues of entitlement to an initial rating in excess of 20 percent for left knee instability, entitlement to a rating in excess of 10 percent for left knee extension, and entitlement to a TDIU for the period prior to August 16, 2007.  However, the Board notes that the Veteran has not disagreed with the initial 20 percent rating for left knee instability or the effective date regarding entitlement to a TDIU.  Additionally, since a May 2010 Board decision which denied entitlement to a rating in excess of 10 percent for extension of the left knee, the Veteran has not filed a claim for an increased rating for his left knee disability.  As a result, despite the actions of the December 2017 SSOC, these issues are not currently before the Board on appeal.




FINDING OF FACT

The Veteran has a total rating for major depressive disorder and does not allege, nor does the record show, that his remaining service-connected disabilities (left knee instability and residuals left knee injury) render him unemployable.


CONCLUSION OF LAW

The grant of a 100 percent rating for major depressive disorder renders moot the appeal for a TDIU.  38 U.S.C. §§ 1155, 5101(a), 5121, 5121A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations

A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a) (2017).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  Id.  

However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability.  38 C.F.R. § 4.16(b) (2017).  See also Fanning v. Brown, 4 Vet. App. 225 (1993).  

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  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 nonservice- connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. 
§ 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors.  See Kellar v. Brown, 6 Vet. App. 157 (1994).  An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability.  Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required.  In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities.  See VAOPGCPREC 6-96. 

Additionally, the Board cannot assign an extraschedular evaluation in the first instance.  See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008).  Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. 


Factual Background and Analysis

The Veteran filed a claim for a TDIU on August 16, 2007.  

The Veteran underwent a mental health VA examination in July 2017 where it was determined that the Veteran's major depressive disorder resulted in total occupational and social impairment.  As a result, in a December 2017 rating decision, the AMC granted an increased 100 percent disability rating for the Veteran's service-connected major depressive disorder, effective August 16, 2007.  As noted in the Introduction, August 16, 2007, is the effective date of the award of service connection for that disability.

Pursuant to Rice v. Shinseki, 22 Vet. App. 44 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record.  However, the claim of entitlement to a TDIU has been rendered moot by the award of a 100 percent schedular evaluation for major depressive disorder since August 16, 2007.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). 

However, a grant of a 100 percent disability does not always render the issue of TDIU moot.  VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250   (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent.  See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999).

In the case at hand, there is no allegation or evidence that TDIU may be awarded independently of the Veteran's major depressive disorder.  The Veteran, in addition to being service-connected for major depressive disorder at a 100 percent evaluation, effective August 16, 2007, is also service-connected for left knee instability as 20 percent disabling from December 12, 2005, and a residuals of left knee injury disability as 10 percent disabling from July 19, 2005.

The Veteran has not argued, and no evidence indicates, that the service-connected left knee disabilities have prevented the Veteran from securing or following a substantially gainful occupation within the meaning of 38 C.F.R. § 4.16 (2017).  

Notably, a July 2017 VA examiner specifically indicated that the Veteran's left knee disabilities did not limit him to perform a sedentary occupation.

The Board acknowledges that the Veteran did point to a back disability as contributing to his unemployability in his formal application received in August 2007.  However, service connection for that disability was denied and the matter is not now before the Board.

Accordingly, there is no question or controversy for consideration by the Board with regard to TDIU for the period since August 16, 2007.  See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011).

Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal for the issue of entitlement to a TDIU, and it is dismissed.  See 38 U.S.C. § 7105 (d) (5) (2012); 38 C.F.R. § 20.202 (2017).


ORDER

The appeal as to entitlement to TDIU is dismissed.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs