Citation Nr: 20005250 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 19-02 642 DATE: January 22, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 1, 2019, is denied. FINDINGS OF FACT 1. The Veteran is in receipt of a total 100 percent combined schedular rating effective October 1, 2019. 2. The evidence does not support that the Veteran’s service-connected disabilities rendered him unable to engage and retain substantially gainful employment prior to October 1, 2019. CONCLUSION OF LAW The criteria for a TDIU prior to October 1, 2019, are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Navy from October 1957 to October 1976. During the pendency of this appeal, the Veteran has been granted a total 100 percent rating as of October 1, 2019. As such, his claim for a TDIU is moot from that date. See Colayong v. West, 12 Vet. App. 524 (1999) (holding that a grant of TDIU does not moot a schedular or extraschedular claim, but a 100 percent schedular or extraschedular rating does moot a TDIU claim). The Board acknowledges that a grant of a 100 percent schedular rating does not always render the issue of a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, special monthly compensation may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that a TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 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). However, in the case at hand, the Veteran does not have a single disability rated 100 percent. As such, these provisions are not applicable to this Veteran, and the issue of a TDIU is moot as of the date of the Veteran’s total 100 percent rating. However, as the October 1, 2019, date of the total 100 percent rating does not precede the date of the TDIU claim, raised in the December 2018 Form 9, the Veteran’s claim for a TDIU is not moot for the entirety of the appeal period for the claim. Thus, the Board will discuss the issue of entitlement to a TDIU prior to October 1, 2019. Entitlement to a TDIU prior to October 1, 2019, A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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. 38 C.F.R. § 4.16(a). The Veteran is service connected for multiple disabilities prior to October 1, 2019. During that period, the Veteran does not have at least one disability rated 40 percent or more. Nor is the Veteran’s combined total rating at least 70 percent prior to October 1, 2019. The Veteran therefore does not meet the schedular criteria for a TDIU prior to October 1, 2019. 38 C.F.R. § 4.16(a). The Board also does not find that referral to the Director of Compensation Service for extraschedular consideration is warranted in this case as the Board concludes that the Veteran is not unable to attain or maintain substantially gainful employment due to his service-connected disabilities. The Board previously remanded this appeal in April 2019 for further development of the appeal for a TDIU. Specifically, the Board noted that the record lacks sufficient evidence regarding the Veteran’s employment and education background and that the Veteran had not provided a detailed history to this effect. Additionally, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. Thus, as the Veteran had not been provided such assistance, the Board remanded the appeal and instructed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to complete and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Following remand, the record reflects that the AOJ subsequently sent the Veteran a letter in April 2019 requesting information regarding his employment and education background. The letter also requested that the Veteran please include, if possible, the VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran did not respond. A May 2019 correspondence from the Veteran’s representative acknowledged receipt of VA’s April 2019 request and indicates that the information would be provided. However, as of this date, the evidence has not been submitted. Additionally, as VA attempted to obtain the information, the Board finds that VA has complied with its duty to assist, and, as such, further remand is not warranted. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. Nor does the record reflect a request for an extension of time to submit additional evidence regarding the claim. The Board notes that a veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). Moreover, as the information requested has not been provided, the record lacks sufficient evidence to ascertain the Veteran’s employment and education background. Nor is there any additional evidence of record to support the claim. Other than the assertion in the December 2018 Form 9 that a TDIU is warranted, there are no statements of record from the Veteran, either in written form or cited in any medical records, addressing the impact his service-connected disabilities have or have had on his ability to work. The Board acknowledges that an October 2019 VA exam report regarding myasthenia gravis indicates that the Veteran does not work and that his last job was in 2003 as a store keeper. However, there is no indication as to why he stopped working or how his unemployment is related to any service-connected disability. A June 2017 audio VA exam report indicates that the Veteran’s hearing loss impacts his “daily life, including ability to work.” However, in describing the impact, the report states that the Veteran reported, “I think we’re getting ready for a divorce’ because his wife is tired of repeating everything, and his wife wants him to learn sign language.” The Board notes that these statements speak to the impact the Veteran’s hearing loss has on his daily life, not his ability to work. An October 2019 VA report regarding the Veteran’s service-connected diabetes does note that he has diabetic peripheral neuropathy and that it impacts his ability to work. Specifically, the examiner indicated that it impacts the Veteran’s ability to walk. However, even assuming the Veteran is unable to sustain physical employment due solely to his service-connected diabetic peripheral neuropathy, there is no evidence of record to support that he is unable to gain or retain sedentary employment due solely to a service-connected disability. As such, the Board finds that the record lacks sufficient evidence to discern the overall impact the Veteran’s service-connected disabilities have or have had on his ability to work. Accordingly, in light of the evidence of record, the Board determines that the preponderance of the evidence supports that the Veteran’s service-connected disabilities did not render him unable to engage or retain substantially gainful employment prior to October 1, 2019. Thus, the claim for a TDIU prior to October 1, 2019, is denied, and referral for extraschedular consideration of unemployability is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.