Citation Nr: A19001554 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190305-3064 DATE: September 26, 2019 ORDER Since March 29, 2018, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Since March 29, 2018, the service-connected unspecified depressive disorder did not render the Veteran unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Since March 29, 2018, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114(s), 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.350, 4.15, 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1992 to November 1992 and from January 1994 to September 2015. On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) is effective. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran's chose to participate in VA's test program RAMP, the Rapid Appeals Modernization Program. The Veteran selected the Supplemental Claim lane when he submitted the RAMP election form on September 21, 2018. Accordingly, the February 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Entitlement to a TDIU rating. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that 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, and sufficient additional disability must bring the combined rating to 70 percent or more. In the February 2019 rating decision, the Veteran’s rating for an unspecified depressive disorder was increased to 70 percent effective March 29, 2018, which resulted in a combined evaluation for compensation of 100 percent. The AOJ stated that entitlement to TDIU was moot because it stated that the Veteran’s service-connected disabilities are evaluated as 100 percent disabling and that TDIU was not warranted by the evidence of record. The Veteran contends that he is entitled to TDIU and SMC(s), and that TDIU and SMC(s) should have been granted at the time of the February 2019 rating decision. A TDIU rating and a 100 percent schedular rating based on multiple disabilities generally provide the same benefits, so exchanging one rating for the other would usually serve no purpose. See Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, the distinction between a TDIU and a 100 percent schedular rating matters when entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s) (SMC(s)) is possible. SMC(s) is available to veterans who have a single disability rated as total, and a separate disability(ies) that amount to 60 percent. 38 U.S.C. § 1114(s). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Bradley v. Peake, 22 Vet. App. 280 (2008). The single disability requirement may be met by the award of a TDIU, but only if the TDIU is due to one single disability or disease. Thus, SMC(s) may be awarded where a veteran has a total schedular rating based on multiple disabilities, but one of her disabilities might support a TDIU rating on its own, and the remaining disabilities could combine to form an additional 60 percent rating. In such circumstances, if VA switched the total schedular rating to TDIU, that exchange would entitle the veteran to SMC(s) and thus offer greater benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Here, the Veteran does not have a single service-connected disability with a 100 percent rating. However, his unspecified depressive disorder is rated at 70 percent from March 29, 2018, thus meeting the rating threshold for a TDIU based on a single disability as of March 29, 2018. The disabilities that combine to 60 percent must be "separate and distinct" and involve "different anatomical segments or bodily systems" than the single disability independently ratable at 100 percent. 38 C.F.R. § 3.350(i)(1). The Veteran has remaining disabilities that combine to form an additional 60 percent rating pursuant to 38 C.F.R. § 4.25, including: 50 percent for obstructive sleep apnea, 20 percent each for left and right shoulder tendonitis, 20 percent for left upper extremity radiculopathy, 10 percent for left elbow lateral epicondylitis, 10 percent each for lumbar and cervical spine disabilities, 10 percent for left foot plantar fasciitis, 10 percent for left ear hearing loss, and 10 percent for tinnitus. In short, the Board must undertake an analysis of whether the Veteran's unspecified depressive disorder caused an inability to secure or follow substantially gainful employment from March 29, 2018. If so, he would be entitled to a TDIU for this portion of the appeal period and, in turn, SMC(s), which would provide a greater benefit than his current 100 percent schedular rating for this time period. The record shows that the Veteran was employed until May 2016. According to the Veteran, he voluntarily stopped working in May 2016. He had been working as a contractor doing virtual military recruiting and found it difficult to adjust to a civilian job after being in service 1992 to 2015. In an April 2018 VA examination, the Veteran reported that he was employed from 2015 to 2016 as a contracted Army recruiter. He described his work as "I couldn't deal with them.” The Veteran reported leaving voluntarily. The examiner noted that the Veteran reported being unemployed; however, the Veteran reported that he had been attending college classes online at night for the past year and a half using the Vocational Rehabilitation program. The Veteran reported that he was working toward his Bachelor's in Business Management, and described his performance as, "I'm okay, not failing.” The examiner noted that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner also noted that the Veteran presented with notable strengths, to include an ability to perform well academically at a university. In the June 2018 Social Security Administration (SSA) Disability Insurance Benefit claim decision, the Administrative Law Judge (ALJ) found that the Veteran has not been engaged in substantial gainful activity since May 2016 but found that the Veteran had the residual functional capacity to perform light work. The vocational expert testified that there are no jobs in the national economy that the Veteran could perform. However, the contributing impairments were not limited to unspecified depressive disorder, and instead included obesity, PTSD, left carpal tunnel syndrome, depression, and bilateral rotator cuff tendinopathy. In an August 2018 letter, Dr. J.G. opined that it is at least as likely as not that the Veteran’s depressive disorder grossly impairs the Veteran’s ability to seek, attain, and retain competitive, gainful employment. However, Dr. J.G. seems to have based his rationale exclusively on his review of the record, because there is no indication in the opinion that he performed any clinical evaluation of the Veteran, met with the Veteran, or treated the Veteran. For these reasons, the Board considers Dr. J.G.’s opinion to be of low probative value. On review of the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against a finding of TDIU based on unspecified depressive disorder. The record indicates that the Veteran maintained a substantially gainful occupation until May 2016, despite his service-connected unspecified depressive disorder. The reason for his termination of employment in 2016 was voluntary. See 38 C.F.R. § 4.16. Further, during the course of the appeal, the weight of the probative evidence does not indicate that the Veteran was unable to secure or follow substantially gainful employment due to the service-connected unspecified depressive disorder. To the contrary, the weight of the probative evidence indicates that the Veteran is capable of employment. The record contains an opinion from Dr. J.G. that indicates that the Veteran’s unspecified depressive disorder grossly impairs his ability to seek, attain, and retain competitive, gainful employment. However, the board finds this opinion to be of little probative value, because it is unclear whether Dr. J.G. ever treated the Veteran or completed a clinical evaluation of the Veteran. According to the Veteran, he left his last employment voluntarily. After that, the Veteran reported performing well in an academic setting. The VA examiner and SSA administrator did not find that the Veteran has an inability to maintain gainful employment. Rather, limitations to employment were consistently noted. The Board has also considered the lay evidence and finds that the Veteran's personal observations as to the effect that his service-connected disability had on his ability to work is probative. The competent medical evidence above is also persuasive. The weight of the evidence is against a TDIU as it indicates that the Veteran's service-connected unspecified depressive disorder did not produce unemployability from March 29, 2018. Rather, the rating assigned for his service-connected unspecified depressive disorder is recognition of the occupational impairment it caused. Since May 29, 2018, the preponderance of the evidence is against an award of a TDIU. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. T. Emmart, Associate Counsel 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.