Citation Nr: 21004787 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-53 687 DATE: January 28, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from December 31, 2015 to June 5, 2019 is denied. From June 5, 2019, the issue of entitlement to a TDIU is moot, and is therefore dismissed. FINDINGS OF FACT 1. From December 31, 2015 to June 5, 2019, the competent evidence does not show that the Veteran was unable to secure or follow a substantially gainful employment as a result of his service-connected disabilities. 2. Effective from June 5, 2019, the Veteran had a total schedular rating for lung cancer with additional service-connected disabilities evaluated at 60 percent or more; he was also awarded special monthly compensation (SMC) from that date. CONCLUSIONS OF LAW 1. From December 31, 2015 to June 5, 2019, the schedular requirements for TDIU were met; however, a TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From June 5, 2019, the appeal of the issue of entitlement to a TDIU is moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to January 2012. In September 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. This matter was previously remanded by the Board in December 2019. Also remanded at the time was the issue of entitlement to service connection for lung cancer. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for lung cancer. As this award represents a full grant of the benefits sought with respect to this issue, the matter is resolved and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). TDIU Total ratings based on individual unemployability, referred to as TDIU, may be assigned in the first instance by the Board or the AOJ when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be as ratable at 60 percent or more, and that, if there are two or more disabilities, here 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. See 38 C.F.R. § 4.16(a). For purposes of determining if the schedular threshold is met, “one disability” is defined as disabilities of one or both upper or lower extremities, including the bilateral factor; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In order to be awarded TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled 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). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From December 31, 2015 to June 5, 2019 Prior to June 5, 2019, the Veteran was service-connected for obstructive sleep apnea, rated 50 percent; arthritis of the spine with intervertebral disc syndrome (IVDS), rated 40 percent; diffuse tendinopathy with labral degenerative disease of the left shoulder, rated 10 percent; hallux valgus, rated 10 percent; nephrolithiasis with stage II kidney disease, rated 10 percent; scars status post-surgery of the left leg, rated 10 percent; cubital tunnel syndrome of the right elbow, rated 10 percent; right lower extremity radiculopathy, rated 10 percent; left lower extremity radiculopathy, rated 10 percent; and he was also assigned noncompensable ratings for lung cancer, bilateral knee osteoarthritis, compartment syndrome status post-surgery of the left leg, right hammer toe, erectile dysfunction, bilateral tinea pedis, bruxism, and left knee and leg scars. The combined evaluation was 90 percent during the relevant period on appeal. Therefore, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), were satisfied. However, this alone is not sufficient to establish entitlement to a TDIU rating on a schedular basis. It must also be shown that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. After reviewing the records, the Board does not find that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful employment from December 31, 2015 to June 5, 2019. In his December 2015 VA Form 21-8940, the Veteran reported that he was unable to work solely as a result of his lung cancer. He also reported that he had not been employed since separating from military service in January 2012. The Veteran’s education included a bachelor’s degree in computer science, a master’s degree in health system management, and a Doctor of Education (EdD). The Veteran’s VA treatment records show that in March 2015, he reported right upper quadrant pain that was exacerbated by playing sports. He subsequently reported that he was doing better with less chest pain and dyspnea, and that he was able to exercise. In April 2015, the Veteran reported chest pain, and it was recommended to the Veteran to avoid strenuous activity. In June 2015, the Veteran reported some residual left chest discomfort post-surgery, as well as a frequent and nonproductive cough. In July 2015, the Veteran sought treatment for an upper respiratory infection that resolved. In November 2015, the Veteran’s positron emission tomography (PET) scan showed no evidence of lung cancer recurrence. In December 2015, the Veteran reported chest discomfort. From May 2016 to February 2017, his annual PET scans showed no evidence of disease recurrence or metastatic disease. In May 2016, it was noted that the Veteran was doing well clinically, and his low back pain was controlled with morphine. The Veteran reported increased right elbow pain, which he attributed to typing for his graduate degree work. In June 2017, the Veteran was found to be entitled to services provided by VA’s Vocational Rehabilitation program. The Veteran reported that his long-range goal was to seek a job as a healthcare administrator, and indicated he was willing to comply with the necessary actions for participation in the program. However, the Veteran’s vocational rehabilitation program was discontinued in March 2018, as he did not complete the agreed upon next steps for the program. In June 2017, the Veteran reported that he had been doing well with regard to his health. The Veteran was treated for a kidney stone in January 2017. In the September 2017 informal hearing presentation (IHP), the Veteran contended that he should be entitled to individual unemployability if his lung cancer was granted service connection. In January 2018, the Veteran sought treatment for dyspnea, which was worsened in the supine position, as well as occasional nonspecific incisional discomfort. The Veteran reported bipedal edema, which he attributed to sitting in a chair for most of the day working on his computer and resolves during the evening. The treating clinician noted that there were no clear symptoms of paroxysmal nocturnal dyspnea (PND) or orthopnea. The Veteran denied any new chest pain or clear exercise intolerance. In the February 2018 PET, new focal peri-hilar hypermetabolism was noted at or close to the stump of the previous lobectomy. In June 2018, the Veteran reported that he experienced some difficulty breathing over the months leading up to the appointment. A July 2018 PET indicated interval enlargement of soft tissue density lateral to the aortic arch and left upper lobectomy suture line. A surgical biopsy was recommended. In August 2018, the Veteran sought treatment for severe back pain. He reported an intermitted cough and dysphagia. The Veteran sought treatment for right upper quadrant abdominal pain in November 2018. In December 2018, it was noted that he was experiencing constant right upper quadrant abdominal pain and intermittent lower right quadrant pain with no associated nausea, vomiting, or other gastrointestinal symptoms. The clinician noted that the Veteran’s goal was to be able to play sports and have very little to no pain. The Veteran reported that pain affected his ability to participate in recreational activities, such as soccer. It was noted that the Veteran was very active and played soccer regularly with no difficulty. The Veteran’s right upper quadrant abdominal pain resolved in January 2019. In April 2019, the Veteran’s PET scan indicated further interval increase in hypermetabolic uptake of a soft tissue density lateral to the aortic arch with new hypermetabolism involving T1 spinous process with small bony erosion of unclear significance. In May 2019, the Veteran was described by the treating physician as being very fit and healthy. The Veteran reported he was “totally fine” with no symptoms and did not want to have another surgery; he reported that even if the lung cancer returned, he might elect not to do anything. The Veteran’s treating physician indicated that the Veteran’s PET images indicated most likely lymph node secondary to previous lung cancer, but that a biopsy was needed to diagnose the condition and begin treatment. The evidence of record during the relevant period on appeal indicates that the Veteran was limited to light work physically due to his service-connected conditions. The Veteran’s statements to his treating clinicians regarding his goal to play recreational activities, primarily soccer, suggest he was still capable of light work despite his service-connected disabilities. The Board acknowledges the Veteran’s contention that he could not maintain any substantial gainful activity because of his service-connected residuals of lung cancer during the relevant period on appeal. However, the preponderance of the evidence establishes that the while the Veteran did have limitations as a result of his service-connected conditions, to include intermittent pain, chest discomfort, dyspnea, and right upper and lower quadrant pain, those limitations did not prevent him from securing or following a substantial gainful occupation. The Board notes that the Veteran has not provided specific argument as to why entitlement to a TDIU is warranted during the relevant period on appeal due to the residuals of lung cancer during remission. Moreover, the Board notes that the Veteran did not argue that his other service-connected conditions prevented him from obtaining and maintaining substantially gainful employment. While the Veteran was prescribed morphine for his service-connected arthritis of the spine during the relevant period on appeal, he did not report that his morphine prescription prevented him from obtaining and maintaining substantially gainful employment. He also did not describe any additional impairment caused by his morphine prescription that would prevent him from obtaining and maintaining substantially gainful employment. Furthermore, the Veteran’s treatment records demonstrate that during the relevant period on appeal, he was described by his treating clinician as fit, healthy, and active. The Veteran reported that pain affected his ability to participate in recreational activities, such as soccer; however, it was noted at that time that the Veteran was very active and played soccer regularly with no difficulty. The Board further notes that the Veteran obtained his Doctor of Education, or EdD, during the relevant period on appeal. The Veteran is therefore a highly trained professional and has several graduate level degrees. This demonstrates that the Veteran’s service-connected conditions did not prevent him from undergoing rigorous academic study to obtain his higher education during the relevant period on appeal. As such, the Veteran possessed notable occupational aptitude and demonstrated only slight impairment due to his disabilities during this time. The Veteran further reported during the vocational rehabilitation that his goal when obtaining his EdD was to find employment as a healthcare administrator. This suggests that the Veteran did not believe his service-connected conditions caused an inability to obtain and maintain substantially gainful employment. Accordingly, the Board finds the weight of the evidence demonstrates that the Veteran was not rendered unable to obtain and maintain substantially gainful employment due to his service-connected conditions from December 31, 2015 to June 5, 2019, and the appeal is denied. From June 5, 2019 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 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 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). Specifically, SMC 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. See Bradley, 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). Here, the Veteran is in receipt of a 100 percent rating for his service-connected lung cancer from June 5, 2019. He has also been awarded SMC at the (s) rate from June 5, 2019, on account of his lung cancer rated at 100 percent and additional service-connected disabilities of bone cancer associated with lung cancer, brain cancer associated with lung cancer, obstructive sleep apnea, arthritis of the spine with intervertebral disc syndrome (IVDS), diffuse tendinopathy with labral degenerative disease of the left shoulder, hallux valgus, nephrolithiasis with stage II kidney disease, scars status post-surgery of the left leg, cubital tunnel syndrome of the right elbow, bilateral lower extremity radiculopathy, bilateral knee osteoarthritis, compartment syndrome status post-surgery of the left leg, right hammer toe, erectile dysfunction, bilateral tinea pedis, bruxism, and left knee and leg scars, independently ratable at 60 percent or more from June 5, 2019. Because the Veteran has been in receipt of a 100 percent rating for his service-connected lung cancer from June 5, 2019 and has also been in receipt of SMC from that date, the claim for a TDIU from June 5, 2019 is moot. Bradley v. Peake, 22 Vet. App. 280 (2008). (Continued on the next page)   As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for a TDIU from June 5, 2019 is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.