Citation Nr: 21002138 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-38 414 DATE: January 12, 2021 ORDER The July 2019 Board of Veteran’s Appeals (Board) decision denying entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is vacated. A TDIU prior to October 25, 2018, is granted from January 2014, subject to the laws and regulations governing the award of monetary benefits. The appeal seeking entitlement to a TDIU from October 25, 2018, is dismissed. FINDINGS OF FACT 1. The Veteran’s representative submitted evidence in support of the claim for entitlement to a TDIU to the Board on June 11, 2019, and a request for additional time to submit evidence on June 25, 2019. Due to delays in the centralized mail processing system, this evidence and request was not uploaded to the Veteran’s claims file until July 16, 2019, and July 18, 2019, respectively. 2. In a July 11, 2019, decision, the Board, without having knowledge of the Veteran’s representative’s June 11, 2019, and June 25, 2019, submissions, denied the Veteran’s claim of entitlement to a TDIU. 3. The July 2019 decision effectively denied due process, albeit inadvertently, by not considering all evidence submitted in support of the Veteran’s claim and by not allowing the Veteran the additional requested time to submit further evidence. 4. Prior to October 25, 2018, the Veteran met the schedular criteria for a TDIU, and the evidence is at least in equipoise as to whether he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, alone, after he was last employed in January 2014. 5. As a 100 percent combined schedular disability rating is assigned from October 25, 2018, for the Veteran’s service-connected disabilities, there remain no questions of law or fact to be decided regarding the issue of entitlement to a TDIU during this time period. CONCLUSIONS OF LAW 1. The criteria for vacating the Board’s July 2019 decision denying entitlement to a TDIU are met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for a TDIU prior to October 25, 2018, are met from January 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. 3. The issue of entitlement to a TDIU from October 25, 2018, has been rendered moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to March 1972. Vacatur An appellate decision may be vacated by the Board at any time upon request of the Veteran or his representative, or on the Board’s own motion, when there has been an effective denial of due process. 38 C.F.R. § 20.1000(a). In this case, the Veteran’s representative filed a motion for the Board’s July 2019 decision denying entitlement to a TDIU to be vacated. The Veteran’s representative had submitted evidence in support of the claim for entitlement to a TDIU to the Board on June 11, 2019, and a request for additional time to submit evidence on June 25, 2019. Unfortunately, due to delays in the centralized mail processing system, the June 11, 2019, submission was not uploaded to the Veteran’s VA claim until July 16, 2019; and the June 25, 2019, submission was not uploaded until July 18, 2019. On July 11, 2019, the Board, having no knowledge of the Veteran’s June 2019 submissions, denied entitlement to a TDIU. Failure to consider the June 2019 submissions of evidence in support of the Veteran’s claim and request for additional time constitutes a denial of due process and requires vacatur of the July 2019 decision under 38 C.F.R. § 20.1000(a). Accordingly, the July 2019 Board decision is vacated. TDIU After a September 2013 rating decision, the Veteran appealed an increased rating for hypertension and service connection for PTSD claim. In December 2018, the Board remanded the issue of entitlement to a TDIU which was reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The decision was based on an August 2013 VA examination where the Veteran reported that he was unable to work due to his service-connected hypertension. Additionally, the July 2014 VA psychological statement noted the Veteran’s mental disorder is the type that is “generally indicative of inability to keep a job and having a few friends.” The Board found that the lay reports and consultant’s findings of an inability to work because of service-connected disabilities were not well articulated, somewhat superficial, and, in the case of the consultant’s report, not based on an in-person assessment of the Veteran’s occupational skills and education. Therefore, the issue was remanded for further development. The Veteran contends his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation 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. A finding of total disability is appropriate 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. 38 C.F.R. §§ 3.340(a)(1), 4.15. 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 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. 38 C.F.R. § 4.16(a). “Marginal employment,” as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income.” Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16 (a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. During the period on appeal, the Veteran’s service-connected disabilities have consisted of chronic renal disease with hypertension (rated as 30 percent disabling since October 3, 2012; and 80 percent disabling from October 25, 2018); an adjustment disorder with mixed anxiety and depressed mood (rated as 70 percent disabling throughout the period on appeal); and diabetes mellitus with erectile dysfunction (rated as 20 percent disabling throughout the period on appeal). Accordingly, the Veteran has a combined total disability rating of 80 percent from October 3, 2012, and 100 percent from October 25, 2018, and the schedular criteria of 38 C.F.R. § 4.16(a) for TDIU have been met throughout the period on appeal. Prior to October 25, 2018 With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities prior to October 25, 2018, the Board finds that the evidence warrants the conclusion that he was indeed unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to October 25, 2018. Thus, a TDIU is warranted for this portion of the appeal period. The Veteran submitted an application for TDIU in June 2019. Therein, he reported last having worked in January 2014 as a truck driver for Werner Enterprises, Inc. A request for employment information VA Form 21-4192 completed by this prior employer and submitted in June 2020 confirmed that the Veteran’s last day of employment was January 10, 2014. The Board notes that the Veteran reported having worked with this company beginning in 2006—yet the information submitted by the employer states his employment began in April 2012. Regardless, both start dates predate the appeal period, and show that he worked for this company prior to January 11, 2014 for the period on appeal. Prior to working as a truck driver, the Veteran also reported having worked as a cashier in his application for TDIU. The Board also notes that the Veteran’s prior employer reported that the Veteran earned $13,728.75 in the 12 months preceding his last date of employment. The 2014 Poverty Threshold as defined by the U.S. Census Bureau is $11,354.00 for a single person over the age of 65. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, having earned an annual income above the poverty threshold in this position, the Veteran had substantially gainful employment prior to January 11, 2014. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities after leaving substantially gainful employment during this time period, the Board finds the July 2019 private opinion written by Dr. S.B., Rh.D, CVE, CRC, NCC, LPCC to be the most probative evidence of record. This opinion is based on a thorough review of the Veteran’s medical and employment history, which she noted in great detail in her opinion letter. Dr. S.B. concluded that, physically, the Veteran is capable of no more than sedentary to light work activity. However, he is more impaired by his service-connected psychiatric state. He is unable to perform work as a truck driver which is of medium work activity, or as a cashier which is light work activity, but requires extensive time on his feet. He is further unable to sustain the concentration, focus, or social interaction required for performance of his past two occupations which were semi-skilled in nature. She also explained how the mental limitations associated with medical opinions of record in the claims file prevent the Veteran from performing any type of competitive employment for which he is trained and/or educated. In light of the above, the record reflects that, following the Veteran’s termination of employment in January 2014, his service-connected disabilities have been severely limiting such that they render him unable to secure and follow a substantially gainful occupation. The Board is heavily persuaded by the extremely thorough July 2019 private providers’ report which considered the combined effects of all the Veteran’s service-connected disabilities on his ability to perform all types of work, including sedentary work, and rendered a convincing opinion that the Veteran’s service-connected disabilities, in total, have rendered him unable to follow a substantially gainful occupation, considering his background, education, and training. As such, the Board finds that, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to follow a substantially gainful occupation prior to October 25, 2018. The Board resolves any reasonable doubt in the Veteran’s behalf and finds that a TDIU is warranted from the time his employment terminated in January 2014. This claim is, thus, granted to this extent. From October 25, 2018 The Court 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 that 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). In this regard, the Board notes that a 100 percent schedular rating is a higher benefit than a TDIU. Here, the Veteran is in receipt of a 100 percent combined schedular rating from October 25, 2018. Although 38 C.F.R. § 4.16(a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating for a single disability and has additional disability ratable at 60 percent or higher. The Court held in Buie, 24 Vet. App. at 50 and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). Here, the Veteran does not have a single disability which renders him unemployable. Rather, his TDIU is granted based upon the combined effects from multiple service-connected disabilities. Thus, from October 25, 2018, a TDIU could not assist the Veteran in meeting the criteria for SMC under 38 U.S.C. § 1114(s). (Moreover, the Board finds that the issue of entitlement to SMC under 38 U.S.C. § 1114(s) has not been raised by the record). The issue of entitlement to a TDIU from October 25, 2018 is, therefore, moot and must be dismissed. See 38 U.S.C. §§ 7104, 7105 (d)(5); 38 C.F.R. § 20.101 (which stipulates that the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.