Citation Nr: A20005876 Decision Date: 04/16/20 Archive Date: 04/16/20 DOCKET NO. 190903-29134 DATE: April 16, 2020 ORDER Subject to the applicable regulations concerning the payment of monetary benefits, entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted from December 29, 2012, excluding the periods from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present. Entitlement to a TDIU from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present, has been rendered moot and is dismissed. FINDINGS OF FACT 1. The Veteran filed a formal claim for a TDIU in December 2013, during the pendency of an appeal stemming from a claim filed in January 2012. 2. The Veteran last participated in a substantially gainful occupation on December 28, 2012. 3. The Veteran's service-connected disabilities, acting in concert, rendered him incapable of securing or following a substantially gainful occupation from December 29, 2012, to the present. 4. The evaluations assigned for the Veteran’s service-connected disabilities result in a 100 percent combined evaluation from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present. CONCLUSIONS OF LAW 1. The criteria to establish TDIU are met from December 29, 2012, to the present. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2018). 2. The assignment of a 100 percent combined evaluation for the Veteran’s service-disabilities from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present, renders the TDIU appeal moot for those periods. 38 C.F.R. § 4.16 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to September 1986. Although the totality of the Veteran’s active duty has been confirmed, the file only includes a DD Form 214 in connection with his period of active duty from September 1980 to August 1986. The Veteran’s initial claim seeking a TDIU was denied by the Agency of Original Jurisdiction (AOJ) in an April 2015 rating decision. The Veteran submitted new and material evidence in support of this claim within the appeal period, and thus, the AOJ readjudicated it in a July 2015 rating decision. 38 C.F.R. § 3.156(b) (2018); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed timely disagreement with this determination, among others, which initiated an appeal in the Department of Veterans Affairs’ (VA’s) legacy appeal system. On August 23, 2017, the President signed into law 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"). This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. In February 2018, the Veteran opted into the Rapid Appeals Modernization Program ("RAMP"), a pilot program that VA was using at the time to test the AMA framework. By electing RAMP, he withdrew his pending appeals of four issues from VA's legacy appeals system in favor of the pilot program. Specifically, in his February 2018 RAMP election, he opted into the Supplemental Claim lane. In response, the AOJ continued to deny the Veteran’s appeal in an April 2018 RAMP rating decision under RAMP. The Veteran continued his appeal by filing another RAMP election for the Supplemental Claim lane, and the AOJ, again, denied the benefits sought in a January 2019 RAMP rating decision. Later in January 2019, the Veteran’s private agent filed to continue the appeal under RAMP in the Higher-Level Review lane. Although this filing was received by the AOJ prior to the expiration of RAMP in February 2019, the file includes evidence that such was not “discovered” until the RAMP pilot program had been discontinued. As such, the Veteran and his private agent were notified that this timely filing would not be honored, and the Veteran may only continue his appeal via the AMA system. In July 2019, the Veteran opted to continue his appeal under the AMA and elected the Higher-Level Review lane. The Veteran’s appeal was denied by the AOJ in an August 2019 Higher-Level Review rating decision. The Veteran subsequently filed a VA Form 10182, and he selected to continue his appeal via the Board of Veteran’s Appeals’ (Board’s) direct review docket. 1. Entitlement to a TDIU Total disability ratings for compensation 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a) (2018). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2018). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a) (2018). 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). Analysis The Veteran filed a formal claim for a TDIU in December 2013, during the pendency of an appeal seeking an increased evaluation that stemmed from a claim filed on January 27, 2012. As such, the appeal period for the Veteran’s TDIU appeal is from January 27, 2011, to the present. 38 C.F.R. § 3.400 (o)(2) (2018); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As an initial matter, the evidence of record reflects that the Veteran last participated in a substantially gainful occupation on December 28, 2012. There is no evidence, to include from the Veteran or his private agent, that his employment prior to December 28, 2012, was “marginal” under controlling VA laws. Specifically, there is no evidence that the Veteran’s employment prior to December 28, 2012, resulted in receipt of earned annual income below the poverty threshold, as established by the U.S. Department of Commerce, Bureau of the Census, or that the Veteran’s employment was in a protected environment, such as family business or sheltered workplace. As such, entitlement to a TDIU prior to December 28, 2012, is not warranted as a matter of law. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). The evidence reflects that the Veteran has been unemployed since December 29, 2012, and his combined evaluation meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) from that date until the present. As such, the question before the Board is whether the most probative evidence of record reflects that his service-connected disability, acting alone or in concert, rendered him incapable of securing or following a substantially gainful occupation at any time from December 29, 2012, to the present. With the above in mind, the Board observes that, in Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals for Veteran’s Claims (Court) held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran's "education, employment history and vocational attainment." See 38 C.F.R. § 4.16(b). To this point, the record reflects that the Veteran completed one year of college education after graduating high school, but he has had no other specialized and/or vocational training. After his retirement from the U.S. Air Force in 1986, he was employed by the Office of Personnel Management (OPM) as a Senior Network Analyst from December 1989 to February 2012, at which time he chose to retire. Thereafter, the Veteran worked a truck driver for a private company from March 2012 to December 28, 2012. The Veteran’s former employer from this last period of employment stated that such ended because he could no longer perform the duties of the job, such as switching gears and moving “mail carriers” weighing 75 pounds or more, due to his service-connected knee and shoulder disabilities, respectively. In September 2014, the AOJ was notified that the Veteran was granted disability benefits from the Social Security Administration (SSA), effective from April 2012. While the favorable decision from the SSA and the records upon which it was based are not dispositive of the issue currently before the Board, such may be considered by the Board, who is the finder of fact in this matter, as probative evidence. However, for unknown reasons, the AOJ did not take any steps to seek, obtain, or associate this evidence with the Veteran’s file. While such represents a pre-decisional error in the duty to assist that would necessitate a remand, doing so would not benefit the Veteran further in light of the Board’s favorable findings. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The record reflects that, since December 29, 2012, the Veteran has experienced significant the functional impairment stemming from his service-connected PTSD and orthopedic disabilities of the low back, knees, and shoulders. Various VA examination reports completed during the pendency of the appeal reflect VA examiners’ opinions concerning the impact of the Veteran’s service-connected disabilities on his employability; however, the Board concludes that none are adequate for the purpose of adjudicating the Veteran’s appeal. Specifically, most of the VA examiners’ opinions concerning this critical matter only consider the functional impairment of the service-connected disability subject to the particular examination. As noted above, while a TDIU may be granted based on a single service-connected disability, consideration must also be given to the totality of the functional impairment stemming from all of the Veteran’s disabilities, acting in concert. To this point, while some VA examiners have attempted to provide such an opinion, the ultimate conclusion was that the Veteran’s service-connected disabilities “do not support that employment of a sedentary nature would be precluded.” However, as no rationale was offered for this conclusory statement, the Board considers it to be of very limited probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion.” While the Board acknowledges and appreciates these opinions, they are inadequate for the purpose of readjudicating the Veteran’s appeal for several reasons. As noted above, analyzing claims and appeals for TDIU must consider the Veteran’s complete educational and occupational history. Critically, the record reflects that, since the Veteran’s high school graduation, he has held three full-time positions: (1) A fire protection supervisor and mental health technician while in the U.S. Air Force; (2) a Senior Network Analyst with OPM; and (3) a truck driver handling “mail carriers” weighing 75 pounds or more. In light of the physical requirements associated with serving on active duty, the Board finds that this would not be considered “sedentary employment.” Further, while it is not clear what the duties of a Senior Network Analyst with OPM entail, it is assumed that such includes long periods of sitting at a desk and either typing on a computer or handling paperwork. While these duties may not be physically demanding for some, a November 2014 private physical assessment from Dr. C.N.B. provides the clinician’s opinion that the Veteran’s service-connected disabilities of the low back, knees, and shoulders, rendered the Veteran unable to continue in this employment. Specifically, this opinion noted that the Veteran could only sit for short periods of time before his back would begin to tighten and spasm and that relieving these symptoms by standing and walking proved problematic due to the Veteran’s service-connected knee and shoulder disabilities, as he needed a cane for walking. Lastly, as noted above, the Veteran’s former employer at the private trucking company unambiguously stated that his service-connected shoulder and knee disabilities prevented the Veteran from performing essential functions of this job. In the November 2014 opinion, Dr. C.N.B. made statements that were congruent with the Veteran’s former employer, noting that his service-connected PTSD and orthopedic disabilities, acting in concert, rendered him unable to continue following this substantially gainful occupation. While the Board observes the VA examiners’ opinions stating that the Veteran could maintain sedentary employment, the record is devoid of any evidence, to include from these VA examiners, that the Veteran has an educational background, special training, or prior work experience necessary for sedentary employment. There is no indication that the Veteran is qualified by training or experience for a sedentary job, and no such potential job has been identified. To the contrary, while the Veteran’s post-service occupations have included periods of sitting in a chair and/or truck, both are, otherwise, physically-demanding occupations. Further, the Veteran’s service-connected low back disability prevents extended periods of sitting. As stated above, it is well-established that 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 or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). In sum, the record reflects that the Veteran's service-connected disabilities acting together, specifically his PTSD and orthopedic disabilities of the low back, knees, and shoulders, rendered the Veteran unable to secure or follow a substantially gainful occupation since December 29, 2012 – the day after his last day of full-time employment. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53-56. Having concluded that the criteria of entitlement to a TDIU are met from December 29, 2012, to the present does not end the Board’s inquiry. Particularly, the Board observes the evaluations assigned for the Veteran’s service-connected disabilities result in a 100 percent combined evaluation from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present. As such, while the criteria of entitlement to a TDIU are otherwise met for these periods, the Veteran’s appeal seeking such is rendered moot during the same. 38 C.F.R. §§ 4.16(a), 4.25 (2018); VAOGCPREC 6-99; see also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In light of the holding in Bradley, which takes a position contrary to the one reached in the precedent opinion, the General Counsel withdrew the June 1999 precedent opinion in November 2009. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. The Board notes the precedents of Buie and Bradley; however, application of such cannot benefit the Veteran under the facts presented by the present case. As noted above, for an award of SMC under 38 U.S.C. § 1114 (s), the evidence must show one disability rated 100 percent disabling or a separate TDIU rating predicated on one disability and another disability separately rated at 60 percent or more. [Emphasis added by the Board.] In the present case, none of the Veteran’s service-connected disabilities are independently evaluated 100 percent disabling, and the evidence does not support that any one of the Veteran’s service-connected disabilities precludes him from following a substantially gainful occupation; rather, all of the probative evidence in favor of the Veteran’s appeal considers the functional impairment of the Veteran’s service-connected PTSD and orthopedic disabilities of the low back, knees, and shoulders acting in concert. With this in mind, the Board acknowledges that the Veteran’s service-connected PTSD is independently rated 70 percent disabling from March 28, 2017, to the present – which fulfills half of the requirements for an award of SMC under 38 U.S.C. § 1114 (s). However, this does not avail the Veteran unless TDIU can be awarded during this period based on another service-connected disability acting alone. As analyzed above, the facts of the present case do not support such a finding. Therefore, application of Bradley and/or Buie for consideration of entitlement to SMC would not be fruitful, and as noted in Green, the appeal for a TDIU from December 21, 2013, to September 15, 2014, and from April 5, 2017, to the present, is rendered moot and is dismissed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. D., 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.