Citation Nr: 21066729 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-27 415 DATE: November 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to special monthly compensation at the housebound rate pursuant to 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. The Veteran was in receipt of 100 percent combined rating during the entire appeal period and the single service-connected short bowel syndrome did not render him unable to secure or follow substantially gainful employment. 2. The Veteran has a combined 100 percent rating, and there is no independently ratable single disability at 60 percent that is separate and distinct from the 100 percent service-connected disabilities that involves different anatomical segments or bodily systems at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. The criteria for entitlement to special monthly compensation at the housebound rate pursuant to 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. §§ 1114(s), 5107, 5121; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to August 1993. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issues in a March 2020 remand. The Board directed the RO to develop the issue of TDIU as raised by the record and the issue of SMC as intertwined with the issue of TDIU. In March 2020, the RO provided the Veteran with a notice letter detailing how to substantiate his claim for a TDIU as well as an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) to be completed. The Veteran did not submit the requested 21-8940. The Board finds that there has been substantial compliance with the remand directives and no further remand is necessary. Stegall v. West, Vet. App. 268, 270-71 (1998). 1. Entitlement to a TDIU is denied. 2. Entitlement to SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) is denied. The Veteran generally asserts that he is unable to work as due to his service-connected disabilities. Specifically, in a June 2016 correspondence, the Veteran explained that due the complications and the actual procedure, he has had some permanent changes to his life such as using feeding tubes or using medical equipment, which prevent his ability to work as he has difficult time controlling his bowel movements. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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, 363 (1993). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). By the way of history, the Veteran was awarded a 100 percent combined schedular rating effective January 27, 2016. The Veteran was also in receipt of special monthly compensation under 38 U.S.C. § 1114 subsection (s) and 38 C.F.R. § 3.350(i) on account of short bowel syndrome, which was rated at 100 percent on top of his additional service-connected disabilities that were ratable at 60 percent or more from January 27, 2016 to February 1, 2018. In light of the above-mentioned benefits on appeal along with the currently assigned ratings, the Board notes that the Veteran has been assigned a 100 percent schedular rating throughout the period on appeal. The 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). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a 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. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of 100 percent disability does not always render the issue of TDIU moot. Specifically, special monthly compensation may be warranted if the Veteran has a 100 percent rating for a single disability, and VA finds that TDIU is warranted based solely on the disability other than the disability that is rated on 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350(i). In this instance, the agency of original jurisdiction (AOJ) sent the Veteran a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in March 2020 and instructed him to complete this form. The Veteran did not complete the VA Form 21-8940, which would have provided relevant information regarding his claim of entitlement to a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board noted in its March 2020 remand that a VA Form 21-8940 had not been completed by the Veteran. 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 foregoing shows the Veteran was repeatedly given notice of the necessity of the submission of a Form 21-8940 and reminded of the important information it would be provide regarding his claim of entitlement to a TDIU. 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 and admonished for the failure to make the submission. However, to date, the Veteran has not submitted the requested VA Form 21-8940. Given these facts, the Board finds that VA made reasonable efforts to obtain relevant employment information and that no further efforts are required for VA to comply with its duty to assist. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(1); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that the VA's duty to assist is not a "one-way street" and that a claimant has a duty to cooperate with the VA in developing evidence to support a claim). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97(2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As the Board finds that VA's duties to assist and notify have been satisfied, and although there is still no Form 21-8940 on record, the Board will proceed to decide this claim on the basis of the evidence on record. A May 2021 Social Security Administration (SSA) earnings statement indicates that the Veteran has not earned income in 2008. An October 2013 VA treatment note reflects the Veteran's reports that he last worked part-time as a bookkeeper business during tax season six years ago. The Veteran also reported that he had an associates degree in information technology and had earned over 90 hours of college credit. In this case, the Veteran has been awarded a combined rating of 100 percent since January 16, 2014, for a combination of disabilities including: somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood at 70 percent effective August 20, 2010; bronchial asthma with chronic obstructive pulmonary disease at 10 percent effective February 16, 1995, 30 percent effective January 29, 2005, and 60 percent effective June 29, 2016; short bowel syndrome, status post resection of 275cm of small intestine, cecum and ileocecal valve at 30 percent effective August 20, 2010, 100 percent effective January 27, 2016, and 60 percent effective January 1, 2018; dyshidrotic eczema of the bilateral hands and left foot at 10 percent effective February 16, 1995; bilateral flat feet with bilateral calcaneal heel spurs at noncompensable rating effective February 16, 1995 and at 10 percent from January 19, 2005; varicose veins of the right lower extremity at 20 percent from February 16, 1995, 40 percent from January 19, 2005, and 10 percent from July 27, 2015; and scar due to post tracheostomy removal at noncompensable rating effective February 4, 2016. Turning to the evidence of record, the Veteran was provided with several VA examinations to determine the severity of his intestinal condition post-surgery in 2016. During the October 2016 VA examination on intestinal condition, the Veteran was diagnosed with irritable bowel syndrome, where the Veteran was noted to have lost weight and has symptoms of frequent episodes of alternating diarrhea and constipation, although he does not have malnutrition or other serious complications or other general health effects attributable to the intestinal condition. The examiner opined that the Veteran's intestinal condition did not impact his ability to work. In a June 2017 VA examination for intestinal surgery, resection of the small intestine was noted, and symptoms of abdominal distention noted. However, the VA examiner opined that the intestinal surgery residuals did not impact his ability to work. During the April 2021 VA examination for posttraumatic stress disorder (PTSD), the VA examiner noted that the Veteran explained that due this service-connected mental health condition, he felt that he could not work. However, during the August 2021 VA examinations for esophageal conditions or hernias, the VA examiners opined that the Veteran's hernias and esophageal conditions did not impact his ability to work. In the February 2018 VA medical treatment record, the Veteran was observed to be maintaining nutritional levels with regular meals, snacking and shakes. While hernia was present for several months, he could walk several blocks and climb four flights of stairs without stopping. Therefore, the Board finds that a TDIU based on any single disability is not warranted at this time. The evidence does not show that the Veteran is unable to work as due to any of his single service-connected disability. In fact, the evidence consistently supports a finding that the Veteran's service-connected disabilities do not prevent the Veteran from obtaining or sustaining a substantially gainful employment. There is no indication in the record that his service-connected disabilities, on their own, prevent him from participating in any kind of work. Although the Veteran does have some difficulties with bowel control and has emotional difficulties, these symptoms alone do not make him unable to work. The Board also considered whether the singular short bowel syndrome, as alleged by the Veteran, warranted a TDIU even though the Veteran had a combined 100 percent rating but finds such not to be the case as the medical evidence does not support a finding that the short bowel syndrome prevented the Veteran from securing or following a substantially gainful occupation. With regards to the special monthly compensation claim, there is no singular service-connected disability rated at 60 percent or above independent from the combined disability rating during the period on appeal. Specifically, the short bowel syndrome is no longer rated at the temporary 100 percent effective January 1, 2018 which would qualify the Veteran for special monthly compensation. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). (Continued on the next page) As such, for the appeal period, the Veteran did not meet the schedular requirements necessary to establish entitlement to special monthly compensation at the housebound rate as he does not have a service-connected disability rated as 60 percent disabling separate and distinct from the disabilities that combined to create the TDIU entitlement for the Veteran after January 1, 2018. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran's claims regarding TDIU and special monthly compensation. The Board finds also that the findings of Bradley are not applicable as the Veteran does not meet the schedular requirements for special monthly compensation. As such, the benefit of the doubt doctrine is not applicable in the instant appeals, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.