Citation Nr: 1805705 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-44 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 10, 2014 to January 2, 2015. ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from June 1974 to June 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The April 2009 rating decision denied an increased rating evaluation for PTSD, which was evaluated as 50 percent disabling. As noted in the April 2013 Board remand, the Veteran raised a claim for a TDIU in his January 2010 Notice of Disagreement (NOD). The issue of entitlement to a TDIU was initially adjudicated in the October 2010 Statement of the Case (SOC). In April 2013, the Board determined the issue of a TDIU to be closely related to the claim for a higher rating for his service-connected PTSD, and accepted jurisdiction over the matter. See Rice v. Shinseki, 22 Vet. App. 447 (2209) (when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU rating will be considered part and parcel of the claim for benefits for the underlying disability). In April 2013, the Board remanded the issue of a TDIU for further development. In a September 2016 rating decision, the Veteran was assigned a 100 percent evaluation for his PTSD, effective September 11, 2014. In February 2017, the Board remanded this issue for additional development due to a September 2016 SSOC, where the RO found that the Veteran was not entitled to a TDIU because the Veteran was granted a 100 percent disability rating, for his service-connected PTSD, effective September 11, 2014. In that decision, the RO noted the Veteran's last day of employment to be September 11, 2014. The Board sought clarity on whether the Veteran was able to maintain substantially gainful prior to September 11, 2014. The Board notes that the issue has been recharacterized on the title page, based on the Veteran's October 2017 correspondence, indicating that he is only seeking a TDIU from October 2014 to January 2015. The Veteran asserts that this narrower period reflects the time when he was on leave without pay (LWOP) status from his full-time employment. FINDINGS OF FACT 1. The Veteran was not employable for the period from October 10, 2014 to January 2, 2015. 2. The Veteran was granted a 100 percent disability evaluation for PTSD, from September 11, 2014. 3. To grant a TDIU based on service-connected PTSD that is rated as 100 percent, during the period from October 10, 2014, to January 2, 2015, would be duplicative counting of a disability, and not allowed. CONCLUSION OF LAW The criteria for an award of a TDIU are not met from October 10, 2014 to January 2, 2015. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (emphasis added). The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran's is in receipt of a 100 percent schedular disability rating (pursuant to a September 2016 rating decision) for his service-connected PTSD, the underlying service-connected disability from the TDIU claim, effective September 11, 2014. Assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that it is possible for a veteran to receive "TDIU for a single disability and thereafter be awarded disability ratings for other conditions," resulting in no duplicative counting of disabilities."). In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent rating where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. In this case, the other service-connected disabilities are obstructive sleep apnea, associated with PTSD, rated at 50 percent, from August 2014 and residuals fractured transverse process, L4, rated at 10 percent, from June 8, 2009. In a September 2014 letter written by the Veteran's private examiner, the examiner reported that the Veteran should take medical leave from his job, due to symptoms of PTSD. In a January 2015 statement, the Veteran reported that he could no longer work due to his service-connected PTSD. See January 2015 application for increased compensation based on unemployability (on a VA Form 21-8940). On that form, the Veteran listed September 11, 2014 as the date his disability affected his full-time employment and the last date he worked full-time. His January 2015 statement focuses entirely on how his service-connected PTSD prevents him from being able to obtain and maintain substantially gainful employment. The evidence for the time period between October 10, 2014 to January 4, 2015 (after the Veteran was granted the 100 percent disability rating for PTSD) does not show that the Veteran was unable to secure and follow substantially gainful occupation solely by reason of the Veteran's service-connected disabilities other than PTSD. Nor has the Veteran asserted otherwise. Thus, to also award a separate TDIU rating in addition to the schedular 100-percent rating, based solely on the Veteran's service-connected psychiatric disorder, would result in duplicate counting of that disability. Accordingly, while the Board finds that the Veteran is totally disabled, and thus increased the Veteran's schedular disability to 100 percent, TDIU, nonetheless must be denied. ORDER A TDIU from October 10, 2014 to January 2, 2015, is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs