Citation Nr: 21066632 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 10-27 286A DATE: November 1, 2021 ORDER Entitlement to a total rating based upon individual unemployability (TDIU) prior to July 29, 2021 is denied. FINDINGS OF FACT 1. The evidence of record does not support a finding that the Veteran's service-connected disability rendered him unable to secure and follow substantially gainful employment prior to July 29, 2021. 2. Entitlement to a TDIU from July 29, 2021 is moot as the Veteran is now in receipt of special monthly compensation (SMC) for one disability rated at 100 percent and additional disabilities rated at 60 percent or higher. CONCLUSION OF LAW The criteria for a TDIU are not met prior to July 29, 2021. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This matter was previously before the Board of Veterans' Appeals (Board) in May 2021, at which time the Board remanded the matter to conduct further development needed to resolve the issue of entitlement to a TDIU. That development having been completed; this claim is once again before the Board. In an August 2021 Supplemental Statement of the Case, the Regional Office (RO) again denied entitlement to a TDIU. In an August 2021 rating decision, the Veteran was granted an increased rating for posttraumatic stress disorder (PTSD), bringing his rating for PTSD to 100 percent, and also granting special monthly compensation based on housebound criteria. The Court of Appeals for Veterans Claims (Court) held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate). See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. Nevertheless, in this case, the Board concludes that the holding in Bradley is inapplicable, and a potential TDIU claim is rendered moot after July 29, 2021. Specifically, the Veteran was granted a 100 percent schedular disability rating for PTSD and has been granted an award of SMC based on additional service-connected disabilities independently ratable at 60 percent or more as of July 29, 2021. Therefore, as SMC has been awarded, the TDIU claim is moot after July 2021. The Veteran's claim remains on appeal for the period prior to July 2021. Entitlement to a total rating based on individual unemployability (TDIU) prior to July 29, 2021 The Veteran seeks a TDIU. He contends that the residuals of his prostate cancer have rendered him unable to secure or follow a substantially gainful occupation. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD, rated 70 percent from April 2015 to July 2021, and rated 100 percent thereafter; prostate cancer residuals rated at 70 percent from April 2015; abdominal pain associated with prostate cancer rated at 10 percent from April 2015. His combined rating was 90 percent from April 2015, with a combined rating of 100 percent from July 2021. Based on the forgoing, the Veteran has one disability rated 60 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The RO has requested the VA Form 21-8940 from the Veteran on three occasions. The Veteran has not returned the form. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reason for leaving employment and without sufficient evidence to assess his employment status for the appeal period. For the reasons that follow, the Board finds that a TDIU is not warranted. 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). The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran was employed for 30 years following service, retiring from that position in 1998. Thereafter, the Veteran was employed by another company for more than 13 years, at which time he returned to work for his previous employer until 2015. At a June 2015 VA examination for PTSD, the Veteran reported that he might be returning to work. Information as to the Veteran's occupational training and his income are unknown. In a December 2016 letter, the Veteran stated that he had to get up every hour to go to the bathroom due to his prostate cancer and that it was impossible to get a job because of his condition. At a December 2016 VA examination for prostate cancer the examiner noted that his prostate cancer affected the Veteran's ability to work due to chronic incontinence. In a July 2021 examination for PTSD, the examiner noted that the Veteran continued working until April 2020 and stated that although the Veteran had been working, due to his PTSD and other service-connected disabilities he was judged to be totally unemployable as of the July 2021 evaluation. This examination resulted in the assignment of a 100 percent rating for PTSD. The August 2021 examiner stated that the Veteran experienced frequent urination and incontinence as a result of his prostate cancer residuals that limited his productivity and impacted his ability to rest. The examiner also noted that the Veteran's femoral neuropathy caused frequent sharp pains that impaired his focus and decreased his productivity. Given the forgoing, the Veteran's service-connected disabilities did not preclude him from the ability to secure and follow a substantially gainful occupation prior to July 29, 2021. The Veteran continued to be employed up until April 2020, and no evidence of record suggests that he retired or stopped working due to his service-connected disabilities. The Board finds that the evidence does not support a finding that the Veteran is unable to secure or follow a substantially gainful employment as a result of his service-connected disabilities. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to TDIU benefits prior to July 29, 2021 is therefore denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Geer, Vanessa V. 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.