Citation Nr: 21066401 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-17 191 DATE: October 29, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to November 10, 2015 is denied. REMANDED Special monthly compensation (SMC) based on the need for the aid and attendance of another person is remanded. FINDING OF FACT Prior to November 10, 2015 the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Prior to November 10, 2015 the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to June 1988 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2017 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In July 2019, the Board remanded the above claims for further development. While the Board also remanded a claim for service connection for erectile dysfunction, as the VA Regional Office subsequently granted the claim in a June 2021 rating decision, it is no longer in appellate status and will not be addressed below. Additionally, the Board remanded a claim for an earlier effective date for the award of service connection for a skin disability for the issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238, 240 (1999). A statement of the case was issued in July 2020, but the appeal was not perfected. As such, that claim too is not in appellate status and will not be addressed in this decision. A TDIU prior to November 10, 2015 is denied. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his or her service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; 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. Here, as discussed by the Board in July 2019, a claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran additionally filed a formal application for a TDIU (VA Form 21-8940) in November 2016, construing the claim pursuant to Rice is more favorable to him because it may stem from as early as December 2012 when VA received his claim for higher ratings for his service-connected foot disabilities. Moreover, in a July 2020 rating decision issued subsequent to the Board's July 2019 adjudication, a TDIU was granted effective November 10, 2015. However, because the claim was not granted for the entire appeal period dating back to December 2012, it remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). For the portion of the appeal period dated prior to November 10, 2015, the minimum schedular criteria were not met. During this time period, the Veteran's service connected disabilities included the following: lumbar spine disability (10 percent disabling prior to 4/9/13 and 40 percent disabling since); hallux rigidus of the right foot (10 percent disabling); hallux rigidus of the left foot (10 percent disabling); and bilateral foot scars (noncompensable). The Veteran's combined disability rating was 50 percent or less throughout the pertinent appeal period. See June 2021 rating decision codesheet (most recent codesheet). Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities "shall be rated totally disabled." See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an "extraschedular rating". Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board finds, however, that no referral is warranted. The record shows that the Veteran has a high school degree, and worked in security, as a police officer, and as a school monitor following his 1988 discharge from military service until January 2006. See, e.g., VA Form 21-8940. On VA lumbar spine examination in July 2012, the examiner found the disability had no impact on the Veteran's ability to work. On VA lumbar spine examination in April 2013, the examiner found the disability limited the Veteran to jobs not requiring physical labor. He was limited in his ability to push, pull, carry, lift, and twist. On VA lumbar spine examination in April 2015, the examiner found the disability had no impact on the Veteran's ability to work. In an August 2018 private vocational assessment, Dr. S. reviewed the claims file and interviewed the Veteran. He opined that it was as likely as not that the combination of pain and limitations caused by his service-connected disabilities prevented the Veteran from working full-time as of November 10, 2015. Prior to November 10, 2015, the minimum schedular criteria were not met and although he was not working, the impact of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful employment was minimal. He had no audio limitations, no visual limitations, and no mental limitations due to service-connected disabilities. The evidence is conflicting as to his physical limitations, but at worst, he could still engage in employment not requiring physical labor. As such, referral for consideration of an extraschedular TDIU prior to November 10, 2015 is not warranted. Since November 10, 2015 As noted, the Veteran has been awarded a TDIU since November 10, 2015. VA's duty to maximize a claimant's benefits requires additional consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), referred to below as "SMC(s)." SMC(s) is available to veterans who have a single disability rated as total, and a separate disability(ies) that amount to 60 percent. 38 U.S.C. § 1114(s). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Id. The Veteran has already been awarded SMC(s) from January 29, 2016 to May 1, 2016, and from September 25, 2018 onward. While these awards of SMC(s) do not cover the entirety of the appeal period dated since November 10, 2015, other than during the times he has been in receipt of SMC(s), the Veteran has not had any disability rated at or above 60 percent as is required to meet the rating threshold for TDIU based on a single disability. As such, it is not necessary to determine whether, at any other point in the appeal period dated since November 10, 2015, one of the Veteran's disabilities could have supported a TDIU finding on its own (i.e., whether one disability by itself precluded him from obtaining or maintaining substantially gainful employment), or whether the remaining disabilities could have combined to form an additional 60 percent rating. A further award of SMC(s) is simply not possible. REASONS FOR REMAND SMC based on the need for the aid and attendance of another person is remanded. VA's duty to assist requires VA to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. VA's responsibilities include obtaining relevant, adequately identified records not in the custody of a Federal department or agency. In September 2019, the Veteran completed VA Form 21-4142a (General Release for Medical Provider Information to VA), indicating that he has received ongoing private treatment from Dr. N. since October 2017. The VA Regional Office made one attempt to obtain the records. A reply was not received, and further attempts to obtain the records were not made. 38 C.F.R. § 3.159(c)(1) provides that reasonable efforts to obtain private medical records consist of an initial request for the records and, if the records are not received, at least one follow-up request. As the records appear relevant to the claim for SMC, sufficient efforts must be made to obtain them prior to appellate adjudication. The matter is REMANDED for the following action: As needed, ask the Veteran to complete an updated VA Form 21-4142a for Dr. N. Thereafter, make two requests for the authorized records from this provider unless it is clear after the first request that a second request would be futile. Document all requests made and all responses received for the claims file. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.