Citation Nr: 21063755 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-53 727 DATE: October 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 5, 2020, is granted. The appeal seeking entitlement to a TDIU from November 5, 2020, is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, prior to November 5, 2020, his service-connected disabilities precluded him from securing and following a substantially gainful occupation. 2. As a 100 percent combined schedular disability rating is assigned from November 5, 2020, 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. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU prior to November 5, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. 2. The issue of entitlement to a TDIU from November 5, 2020, has been rendered moot. U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to October 1996. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In November 2019 and June 2021, this matter was remanded for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to a TDIU prior to November 5, 2020 The Veteran seeks entitlement to a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The claim for a TDIU was remanded by the Board in November 2019 and June 2021. In November 2019, the Board found that Social Security Administration (SSA) records should be obtained along with a VA examination to determine the current effect of the Veteran's service-connected disabilities on his employability, along with finding additional information was needed from the Veteran. The June 2021 Board remand found that the development conducted in response to the November 2019 remand directives was inadequate and directed the agency of original jurisdiction (AOJ) to obtain an addendum opinion to determine the current effect of the Veteran's service-connected disabilities on his employability. While the Board observes that some of the development conducted in response to the Board's prior remand directives is lacking or in part not substantially compliant with the Board's directives, the Board is herein granting the Veteran's claim for the entirety of the appeal period. As the Board is granting the relief sought in full and the Veteran will therefore not be prejudiced by proceeding on the merits, a remand to correct any errors or lack of compliance with the Board's prior remand directives is not necessary and any deficiency is deemed to be harmless error. The Veteran's TDIU claim was raised in the context of an increased rating claim for his service-connected migraine and polyarthralgia disabilities. Thus, the appeal period begins on December 8, 2009, one year preceding the date that his increased rating claim was received on December 8, 2010. 38 C.F.R. § 3.400(o)(2). Since that time, the Veteran had a combined disability rating of 70 percent from September 6, 2007; 80 percent from December 8, 2010; 90 percent from August 28, 2019; and 100 percent from November 5, 2020. His service-connected disabilities are as follows: migraine headaches, rated 30 percent from December 22, 1997 and rated 50 percent from December 8, 2010; left elbow tendinitis, rated 10 percent from December 8, 2010 and rated 20 percent from August 28, 2019; left elbow impairment of supination/pronation associated with left elbow tendinitis, rated 20 percent from August 28, 2019; right elbow impairment of supination/pronation associated with polyarthralgia involving right elbow, rated 20 percent from August 28, 2019; polyarthralgia involving right elbow, rated 10 percent from September 6, 2007, and 20 percent from August 28, 2019; polyarthralgia involving right ankle, rated 10 percent from September 6, 2007 and 20 percent from August 28, 2019; polyarthralgia involving left wrist and fingers, rated 10 percent from September 6, 2007; polyarthralgia involving right wrist and fingers, rated 10 percent from September 6, 2007; polyarthralgia involving left knee, rated 10 percent from September 6, 2007; polyarthralgia involving right knee, rated 10 percent from September 6, 2007; polyarthralgia involving left ankle, rated 10 percent from September 6, 2007; and tendinitis of the left index finger limitation of motion, rated 10 percent from December 8, 2010. The Board observes that, under 38 C.F.R. § 4.25(a) and (b), the Veteran's polyarthralgia disabilities can be combined as arising from a single disease entity in calculating the Veteran's combined rating. As such, these ratings combine to a single 50 percent rating and contribute to the Veteran's 70 percent combined disability rating from September 6, 2007. As such, the Veteran has met the schedular criteria for a TDIU since September 6, 2007, and for the entire period on appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a September 2017 decision, the SSA determined that the Veteran was fully disabled as of January 6, 2015, due to his primary diagnosis of other and unspecified arthropathies and a secondary diagnosis of disorders of the back. SSA decisions, while relevant, are non-binding on the Board. Martin v. Brown, 4 Vet. App. 136, 140 (1993). Although the SSA decision appears to be based on nonservice-connected physical disabilities described in the determination as fractures of the tibia and fibula and osteoarthritis in the bilateral hips, the SSA records show that he reported limitations related to his service-connected disabilities, such as his bilateral ankles, migraines, and joint pain and swelling. The question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Review of the evidence of record, when taken in total, supports the finding that the Veteran is unable to obtain and maintain gainful employment as a result of his service-connected disabilities. As such, a TDIU is warranted for the period prior to November 5, 2020. The Veteran submitted a VA Form 21-8940 in March 2011, wherein he asserted that his service-connected migraines and joint swelling prevent him from securing and following substantially gainful employment. He reported that his disabilities affected his employment in December 2007 and that he became too disabled to work in December 2009. He reported that his prior employment included work as security for a hospital and that he left his job because of his disability. Information received from the Veteran's former employer provided clarification on his separation from their employment. The former employer noted that the Veteran's employment was terminated some time between February 2010 and June 2010 (responses differ) and that the reason for termination was excessive absences and tardiness. See March 2011 Third Party Correspondence. During an April 2016 VA headaches examination, the examiner indicated that the Veteran's migraine headaches impact his ability to work. The examiner noted that when the Veteran experiences severe migraines, he must rest. An August 2016 hand and finger conditions examination noted that the Veteran's service-connected polyarthralgia involving the left fingers impact his ability to work by causing difficulty with duties involving heavy lifting, typing, or grasping as necessary in clerical duties or for stocking items. The examiner noted that there would be no effect on any other sedentary or physical duties. Similarly, during an August 2016 VA knee and leg conditions examination, the examiner indicated that the Veteran's polyarthralgia involving the left knee and right knee impacts his ability to work as the conditions present difficulty with duties involving kneeling, squatting, prolonged standing, or walking. An April 2016 VA elbow and forearm conditions examination noted that the Veteran's service-connected left elbow tendinitis and polyarthralgia involving the left and right elbows impact his ability to work impact his ability to work by presenting difficulty with duties involving heavy lifting or stocking items. The same work impairments were noted related to the Veteran's service-connected polyarthralgia involving his left wrist during an April 2016 VA wrist conditions examination. During an April 2016 VA ankle examination, the examiner indicated that the Veteran's polyarthralgia of the left and right ankles impact his ability to work as he experiences pain with prolonged standing or walking. Records obtained from the SSA in July 2016 note the Veteran's prior work history as a public safety officer and note that he last worked in December 2010. The records indicate that the Veteran completed four years of college, but he was ultimately determined to be ineligible for disability benefits at that time. Vocational Rehabilitation and Employment (VRE) records received in September 2017 indicated the Veteran has an impairment to employment due to his migraine headaches and his bilateral ankles and knees disabilities. The VRE records reflect that, while job training or job placement services may help to prepare the Veteran for employment that is light duty or sedentary in nature, his lack of formal training and questionable ability to maintain a traditional work schedule would present as possible impairments. The records also noted that his arthritic conditions may require limited physical activity and that his migraine headaches likely offer the greatest barrier to his maintaining employment. At the June 2019 Board hearing, the Veteran testified that he last worked in 2010 and previously worked as a public safety officer and in construction-related work. He reported that his employment was terminated from at least two jobs due to his service-connected migraine headaches condition. VA treatment records from August 2010 and July 2017 note that the Veteran had previously lost a job and has not since been able to hold down a job due to his inability to stand for extended periods of time and for too many absences related to his joint pain and swelling. During the Veteran's September 2019 VA ankle conditions examination, the examiner noted that the Veteran's bilateral ankle polyarthralgia impacts his ability to work because of joint stiffness, pain, and difficulty with prolonged walking over half a mile. Similar impacts on the Veteran's ability to work were described during his September 2019 VA knee and lower leg conditions examination, as his conditions result in knee pain, stiffness, limited range of motion, difficulty with bending, and difficulty with prolonged walking over a half a mile. A September 2019 VA elbow and forearm conditions examination noted that the service-connected polyarthralgia and tendinitis of his elbows impact his ability to work due to elbow pain, stiffness, limited range of motion, and difficulty with heavy lifting and repetitive motion. As noted above, additional SSA records received in July 2020 include a September 2017 determination that the Veteran was fully disabled as of January 6, 2015. The primary diagnosis was of other and unspecified arthropathies and the secondary diagnosis of disorders of the back, but the SSA records document the Veteran's contentions that his service-connected arthralgias and migraine headaches additionally contribute to his employment disability. On the Veteran's August 2020 VA Form 21-8940, he reported that his migraines, bilateral ankles, bilateral knees, bilateral elbows, bilateral wrists and fingers disabilities prevent him from securing or following any substantially gainful occupation. He reported the same employment history and reported that he has been too disabled to work since December 2010. Considering the evidence of record, the Board finds that the overall evidence is persuasive that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. All of the VA examinations of record note that his service-connected disabilities impact his ability to work and make clear that his service-connected disabilities and symptoms limit his ability to secure or follow a substantially gainful occupation. The Veteran's physical disabilities make physical labor difficult and his migraine headaches disability would further hinder his ability to maintain a gainful occupation when he experiences severe headaches. The record demonstrates that his employment was terminated due to excessive absences, which he contends were due to both his migraine disability and his several joint disabilities. Given his physical and neurological limitations, he would likely have difficulty securing and maintaining a gainful occupation related to his prior work as a public safety officer. Aside from the physical challenges that his tendinitis and arthralgias disabilities would present, his migraine headaches require rest and render him completely unable to work when severe migraines occur and would limit his ability to function in a way that would allow him to secure or follow a substantially gainful occupation of any nature. Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful employment due to his service-connected disabilities. The criteria for a TDIU have been met prior to November 5, 2020. 38 C.F.R. §§ 3.340, 4.16. TDIU From November 5, 2020, and Special Monthly Compensation (SMC) 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 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. As previously indicated, the Veteran has a 100 percent combined rating effective November 5, 2020, for his service-connected disabilities. Although 38 C.F.R. § 4.16(a) provides that a TDIU is only warranted where the schedular 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 SMC pursuant to 38 U.S.C. § 1114(s). Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). That statute provides that a veteran who has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound, shall receive SMC under the provisions of 38 U.S.C. § 1114(s). 38 C.F.R. § 3.350(h)(3)(i). The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280 (2008), that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist a Veteran in obtaining special monthly compensation 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 November 5, 2020, a TDIU could not assist the Veteran in meeting the criteria for SMC under 38 U.S.C. § 1114(s). The Board additionally 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 November 5, 2020, to the present is, therefore, moot and must be dismissed. See 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 A. Goreham 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.