Citation Nr: 21004030 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 07-02 736 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to September 1, 2011 is denied. Entitlement to a TDIU for the period from September 1, 2011 to November 14, 2011 is granted. Entitlement to a TDIU for the period from November 15, 2011 to December 31, 2012 is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that the Veteran’s service-connected disabilities were not of such nature and severity as to preclude substantially gainful employment prior to September 1, 2011. 2. The preponderance of the evidence supports a finding that the Veteran’s service-connected disabilities were of such nature and severity as to preclude substantially gainful employment from September 1, 2011 to November 14, 2011. 3. The claim of entitlement to TDIU from November 15, 2011 to December 31, 2012 is moot as the Veteran held a 100 percent schedular rating for depressive disorder as well as special monthly compensation (SMC) under 38 U.S.C. § 1114(s) for other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for the grant of a TDIU for the period prior to September 1, 2011 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for the grant of a TDIU for the period from September 1, 2011 to November 14, 2011 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The claim of entitlement to TDIU for the period from November 15, 2011 to December 31, 2012 is moot. 38 U.S.C. §§ 1114, 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from September 1969 to March 1972 and from September 1985 to November 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An April 2016 rating decision granted a TDIU with an effective date of July 7, 2015. A November 2019 Board decision granted a TDIU from January 1, 2013, to July 7, 2015. The Veteran and his representative appealed the November 2019 Board’s denial of an effective date earlier than January 1, 2013 for a TDIU to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2020 action, the Court granted a Joint Motion for Partial Remand to vacate and remand the denial of an effective date earlier than January 1, 2013. The Joint Motion for Partial Remand noted that the 2019 Board decision found that the appeal period at issue for the TDIU award was from January 1, 2013, to July 7, 2015. However, the Board also found the Veteran’s service-connected disabilities rendered him unable to engage and maintain substantially gainful employment “throughout the entire period on appeal” and noted the matters before the Board in 2019 were on appeal from a November 2004 rating decision. The case is now again before the Board for further appellate action. 1. Entitlement to a TDIU for the period prior to September 1, 2011 is denied. 2. Entitlement to a TDIU for the period from September 1, 2011 to November 14, 2011 is granted. The Veteran contends that he is entitled to a TDIU due to service-connected disabilities prior to January 1, 2013. As described below, the Board has decided herein that the issue of entitlement to a TDIU from November 15, 2011 to December 31, 2012 is moot. 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 a 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 disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Prior to November 15, 2011, the Veteran was service connected for the following disabilities: right foot gout with degenerative changes and hallux valgus, rated at 20 percent from December 1, 2003; left foot gout with degenerative changes and hallux valgus, rated at 20 percent from December 1, 2003; right knee strain, rated at 10 percent from December 1, 2003; degenerative joint disease of the left knee, rated at 10 percent from December 1, 2003; left shoulder strain associated with status post right shoulder rotator cuff injury, rated at 10 percent from December 1, 2003; status post right shoulder rotator cuff injury, rated at 10 percent from December 1, 2003; degenerative intervertebral disc disease, rated at 10 percent from December 1, 2003; tinnitus, rated at 10 percent from December 1, 2003; aneurysm, to include arteriovenous malformation, rated at 10 percent from April 11, 2011; bilateral hearing loss, rated at 0 percent from December 1, 2003; deviated nasal septum, rated at 0 percent from December 1, 2003; sinusitis, rated at 0 percent from December 1, 2003; early atherosclerotic heart disease, rated at 0 percent from December 2, 2003; laparoscopic cholecystectomy, rated at 0 percent from December 1, 2003; hemorrhoids, rated at 0 percent from December 1, 2003; and right inguinal hernia repair, rated at 0 percent from December 1, 2003. The Veteran had a combined disability rating of 70 percent from December 1, 2003 to November 14, 2011. In determining whether the Veteran has one 40 percent disability to warrant a TDIU, disabilities of one or both lower extremities, including the bilateral factor, if applicable, are considered as one disability. 38 C.F.R. § 4.16(a). Therefore, the Veteran meets the schedular requirements for TDIU with disabilities of both lower extremities considered as one disability ratable at 40 percent or more and a combined rating of 70 percent or more during the period on appeal. Id. Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16. Here, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In November 2015, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in which he contended that he was prevented from securing or following a substantially gainful occupation due to his aneurysm and disabilities of his legs, feet, shoulder, and hearing. The Veteran reported that he stopped working on August 31, 2011 due to his disabilities. He was last employed full-time as an aviation safety manager for the Army from March 28, 2008 to August 31, 2011. He reported his highest monthly earnings were more than $9,600 and reported losing 10 weeks to illness during this period. From January 5, 1998 to March 25, 2008, the Veteran worked as an aviation safety inspector for the Army. He reported his highest monthly earnings were nearly $7,200 and reported losing 4 weeks to illness during this period. The Veteran earned a master’s degree in Education from Boston University in 1982. In July 2017, the Veteran submitted another VA Form 21-8940 in which he reported that he lost one day per month from illness during the period from January 1998 through August 2011. An August 2010 VA shoulder examination report indicated that the Veteran was working full time and that his shoulder pain only bothered him when he traveled and has to carry a suitcase. The examiner reported that there was “no real effect on work; when pain is bad won’t exercise (go to gym).” A November 2011 private medical record reported the Veteran underwent a left total knee arthroplasty on November 15, 2011. In an August 2017 vocational assessment, a private vocational expert concluded that the Veteran’s service-connected disabilities precluded him from securing and following sedentary employment since August 2011, when he was last employed. The expert indicated that it was at least as likely as not that this was also true as early as 2010. The vocational expert noted that the Veteran was not able to sit for more than 3-4 hours in one day. During his last year employed, the vocational expert noted that he was moved to an office position and provided with an ergonomic chair for his back. The vocational expert also noted that the Veteran was unable to sit for long hours as he becomes stiff and sore. His shoulder disabilities precluded him from lifting anything at least twice a month during flare ups; he cannot walk for more than 20 minutes; and he cannot stand for more than 30 minutes before needing to rest. Given the probative evidence, the Board finds that the Veteran’s service-connected disabilities inhibited his ability to maintain substantially gainful employment in a physical work environment for the period from September 1, 2011 to November 14, 2011. The record supports that the Veteran’s knee, feet, shoulder and low back conditions made full time physical work difficult. As such, the Board finds that the Veteran could not perform physical tasks commensurate with his work history on a basis that would allow him to maintain substantially gainful employment. However, for the period prior to September 1, 2011, the Board finds the preponderance of evidence shows that the Veteran’s service-connected disabilities did not inhibit his ability to maintain substantially gainful employment in a physical work environment. The record shows that the Veteran was employed full-time as an aviation safety inspector for the Army from January 5, 1998 to March 25, 2008 and as an aviation safety manager for the Army from March 28, 2008 to August 31, 2011. Although the vocational expert indicated that the Veteran’s service-connected disabilities precluded him from securing and following sedentary employment as early as 2010, on the most recently completed VA Form 21-8940, the Veteran reported that he missed one day of work each month and earned well above the poverty level from January 1998 through August 2011. For the reasons discussed above, entitlement to a TDIU is granted from September 1, 2011 to November 14, 2011 and entitlement to a TDIU is denied prior to September 1, 2011. As the preponderance of the evidence is against the claim for a TDIU prior to September 1, 2011, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a TDIU for the period from November 15, 2011 to January 1, 2013 is dismissed. The Veteran contends that he is entitled to a TDIU due to service-connected disabilities prior to January 1, 2013. A November 2012 rating decision granted service connection for the Veteran’s status post total left knee replacement and assigned a 100 percent rating from November 15, 2011, the date of the knee replacement surgery, to December 31, 2012. The United States Court of Appeals for Veterans Claims (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), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). 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 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 TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (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). (Continued on the next page)   Here, the Veteran has been awarded SMC under 38 U.S.C. § 1114(s) from November 15, 2011 to December 31, 2012 on account of his status post total left knee replacement rated 100 percent and additional service-connected disabilities of degenerative intervertebral disc disease claimed as low back pain, hallux valgus with degenerative changes and gout of the left foot, hallux valgus with degenerative changes and gout of the left foot and right foot, left shoulder strain, right knee strain, status post right shoulder rotator cuff injury, independently ratable at 60 percent or more from November 15, 2011 to January 1, 2013. As such, the issue of entitlement to a TDIU from November 15, 2011 to December 31, 2012 is moot. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.