Citation Nr: 20049929 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 12-18 269 DATE: July 27, 2020 ORDER Prior to June 27, 2017, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. From June 27, 2017, entitlement to a TDIU is dismissed. FINDING OF FACT 1. Prior to June 27, 2017, the preponderance of the evidence weighs against finding that the Veteran was unable to secure or follow substantially gainful employment. 2. From June 27, 2017, the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC), which renders the issue of entitlement to TDIU moot for this period. CONCLUSION OF LAW 1. Prior to June 27, 2017, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. 2. From June 27, 2017, the appeal as to entitlement to a TDIU is moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from September 1998 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veteran’s Affairs (VA) Regional Office (RO). In September 2015, the Board remanded the issue of entitlement to a TDIU for further development, which included a request that the Veteran complete and submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In October 2018, the Board remanded the issue of entitlement to a TDIU as inextricably intertwined with claims no longer on appeal, and again requested that the Veteran complete and submit a VA Form 21-8940. In November 2019, the Veteran submitted a VA Form 21-4140 including some employment information from 2017 to the present. In April 2020, the Board remanded the issue of entitlement to a TDIU for the Veteran to complete and submit a VA Form 21-8940 for the period prior to 2017. In June 2015, the Veteran presented testimony at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. A transcript of the hearing is on record. In July 2018, the Veteran was offered another hearing before another VLJ, but she declined. 1. Prior to June 27, 2017, entitlement to a TDIU is denied. The Veteran contends that the severity of her service-connected disabilities warrants assignment of a TDIU. VA may grant a TDIU in cases where the schedular rating is less than total, but the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran meets the schedular criteria for a TDIU beginning May 11, 2010, the day after her separation from service. From this date, her migraine headaches are rated as 50 percent disabling and the combination of her other service-connected disabilities resulted in a 70 percent disability rating. The question, then, is whether there is a basis to conclude that the Veteran’s service-connected disabilities, regardless of age, prevented her from securing and following substantially gainful employment from May 11, 2010. The Board finds that there is simply not enough employment and income information on record to support finding that the Veteran’s service-connected disabilities rendered her unable to secure or follow substantially gainful employment from May 11, 2010. The Veteran has only provided employment information from 2017 to the present, indicating that she worked for a legal office in Gulfport, MS, from some time in 2017 to the present. To date, she has still not provided a VA Form 21-8940. Besides the employment data that she provided in the VA Form 21-4140, there is little employment information on file. Medical records from August 2013 indicate she was employed full-time doing secretarial work, but “missed three days of work [in the last week]… because of feeling too emotional to do her job.” In November 2013, it was noted that she got suspended from work. At her June 2015 hearing, the Veteran stated that she lost her job because she could not sit for long periods of time due to right foot pain and that she had missed work a couple of times due to the severity of her headaches. At the hearing, she also stated that she was currently looking for work. However, a March 2017 statement from an old supervisor indicates she was employed full-time from May 2015 to January 2017, at which time she had to be switched to part-time because of poor performance and occasionally missing work during the prior eight months. The supervisor also notes that this was her third job in four years, but there is no evidence to confirm this. A 2018 PTSD examination noted that she was unable to keep a job due to mood instability, poor work quality, and missed work, but it does not indicate that her inability to keep a job began prior to June 27, 2017. Overall, the Board finds that the evidence weighs against finding that Veteran was prevented from securing or following substantially gainful employment due to her service-connected disabilities prior to June 27, 2017. At worst, there were brief periods where she struggled with employment, but the evidence supports that she was generally employed or able to quickly find employment. For example, in 2013, it was noted that she was suspended, but nothing indicates she was fired. In June 2015, she noted that she had recently lost a job, but other evidence shows that she was able to obtain another by May 2015. Moreover, while the record includes some occupational information, there are gaps, and in order to consider assignment of a TDIU, these gaps must have been filled. To this end, the Board notes that the failure to complete the VA Form 21-8940 deprives the VA of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly determine whether her service-connected disabilities render her unable to secure and follow substantially gainful employment in light of her education and occupational experience. While VA is obligated to assist a claimant in obtaining evidence necessary to substantiate his or her claim, 38 U.S.C. § 5103A(a), “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the record indicates that the Veteran has been on notice of the need to complete and submit a VA Form 21-8940 since September 2015, yet did not provide this essential information. Unfortunately, the preponderance of the evidence that is of record weighs against finding that the Veteran was prevented from securing or following substantially gainful employment prior to June 27, 2017. Accordingly, the claim is denied. 2. From June 27, 2017, entitlement to a TDIU is dismissed. The Board notes that the Veteran has been in receipt of a combined schedular 100 percent disability rating for her service-connected disabilities and SMC since June 27, 2017. The United States Court of Appeals for Veterans Claims has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his/her disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, the Veteran is already in receipt of both a combined schedular 100 percent disability rating for her service-connected disabilities and SMC under 38 U.S.C. § 1114 since June 27, 2017. Therefore, the potential for SMC as discussed in Buie and Bradley is not applicable. As consideration of a TDIU for the period since June 27, 2017 would result in no additional discernable benefit to the Veteran, the issue is moot. Accordingly, there is no question or controversy for consideration by the Board with regard to entitlement to a TDIU from June 27, 2017. Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal of the issue for entitlement to a TDIU from June 27, 2017, and it is dismissed as moot. See 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante 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.