Citation Nr: 18139912
Decision Date: 10/01/18	Archive Date: 10/01/18

DOCKET NO. 13-21 670
DATE:	October 1, 2018
ORDER
A total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is denied.  
FINDINGS OF FACT
1. Service connection is currently in effect for migraine headaches rated as 30 percent disabling; post operative right great toe interphalangeal joint fusion residuals with arthritis rated as 30 percent disabling; a depressive disorder rated as 30 percent disabling; and right fifth finger fracture residuals rated as noncompensable.  The Veteran has a combined 70 percent rating.  
2. The record reflects that the Veteran is substantially and gainfully employed.  
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16.  
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from December 1985 to April 1992.  
In August 2015, the Veteran was afforded a hearing before a Veterans Law Judge sitting at the Columbia, South Carolina, Regional Office.  The hearing transcript is of record.  In August 2018, the Veteran was informed that the Veterans Law Judge who had conducted the August 2015 Board of Veterans’ Appeals (Board) hearing had left the Board and he therefore had the right to an additional hearing before a different Veterans Law Judge.  The Veteran did not respond to the Board’s notice.  
TDIU
Total ratings for compensation purposes may be assigned where the combined schedular rating for the Veteran’s service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the Veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341.  
Total disability ratings for compensation purposes may be assigned, where the schedular rating is less than total, when the 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.  If there is only one such disability, this disability shall be ratable at 60 percent or more.  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.  The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable.  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16 (a).  
Service connection is currently in effect for migraine headaches rated as 30 percent disabling; post operative right great toe interphalangeal joint fusion residuals with arthritis rated as 30 percent disabling; a depressive disorder rated as 30 percent disabling; and right fifth finger fracture residuals rated as noncompensable.  The Veteran has a combined 70 percent rating.  
The Veteran does not meet the schedular criteria for a TDIU under the provision of 38 C.F.R. § 4.16 (a).  In November 2015, the Agency of Original Jurisdiction requested that the Veteran complete and return a provided Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940).  The Board observes that the Veteran failed to return the requested application.  In April 2017, the Veteran submitted a completed an Information Regarding Apportionment of Beneficiary’s Award (VA Form 21-0788) wherein he reported that he was employed and received a monthly gross wage of $2.960.00.  
The Veteran does not meet the schedular criteria for a TDIU under the provision of 38 C.F.R. § 4.16 (a).  He has reported being substantially and gainfully employed.  Given such facts, the Board finds that entitlement to a TDIU has not been established.  
 
J. T. HUTCHESON
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Denton, Buck