Citation Nr: 21066874 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-61 211 DATE: November 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the rating period prior to March 26, 2014 is denied. Entitlement to TDIU for the rating period since March 26, 2014 is dismissed. FINDINGS OF FACT 1. For the rating period prior to March 26, 2014, the Veteran's service-connected disabilities do not meet the threshold requirements for TDIU, and they do not render him unemployable warranting referral to the Director of Compensation Services for extraschedular consideration. 2. From March 26, 2014, the Veteran is in receipt of 100 percent disability evaluation for aortic stenosis with stable angina, status-post heart valve replacement, with history of a heart murmur, as well as special monthly compensation pursuant to 38 U.S.C. § 1114(s). CONCLUSIONS OF LAW 1. For the rating period prior to March 26, 2014, the criteria for TDIU on a schedular basis are not met and referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2020). 2. The issue of entitlement to a TDIU for the period beginning March 26, 2014 is moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1964 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). During the pendency of the appeal, in a March 2021, the AOJ denied the Veteran's claim of entitlement to TDIU. In June 2019, the Board remanded this appeal for further development. A supplemental statement of the case was most recently issued in March 2021. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2020). 1. Entitlement to TDIU for the rating period prior to March 26, 2014. The Veteran seeks entitlement to TDIU based on his service-connected disabilities. The Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in January 2021. The Veteran indicated that he had completed 3 years of a college education and stopped working as a bookkeeper in January 2010. The Veteran indicated that he stopped working due to his inability to concentrate on his work due to his service-connected PTSD. The Veteran also indicated that he has not sought employment or additional training since becoming too disabled to work. For the rating period prior to March 26, 2014, the Veteran was in receipt of service connection for diabetes mellitus with erectile dysfunction with diabetic nephropathy, rated as 20 percent disabling, effective March 26, 2013; hypertension, rated as 10 percent disabling effective March 26, 2013; right and left sciatic peripheral neuropathy, rated as 10 percent disabling per lower extremity, effective March 26, 2013; right and left femoral diabetic neuropathy, rated as 10 percent disabling per lower extremity effective March 26, 2013; right and left lower extremity peripheral vascular disease, rated as noncompensable per lower extremity, effective March 26, 2013; and abdominal scar, rated as noncompensable effective March 26, 2013. The Veteran had a combined disability evaluation of 60 percent, effective March 26, 2013, and a bilateral factor has been in effect for his combined ratings since March 26, 2013. See 38 C.F.R. § 4.25. The Veteran has also been in receipt of special monthly compensation based on loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) since March 26, 2013. As such, the Veteran does not meet the schedular criteria for TDIU for the rating period prior to March 26, 2014. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities of diabetes mellitus with erectile dysfunction with diabetic nephropathy, hypertension, right and left sciatic peripheral neuropathy, right and left femoral diabetic neuropathy, right and left lower extremity peripheral vascular disease, and abdominal scar did not render him unable to obtain or sustain substantially gainful employment prior to March 26, 2014. The evidence of record supports a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, was capable of performing the physical and mental actions required by employment. While his diabetes mellitus and peripheral and diabetic neuropathies might impact his ability to perform physical labor, the Veteran's work history does not indicate that his work experience is limited to physical labor, in fact his last job was as a bookkeeper, a sedentary position. Further, his educational background indicates the ability to perform tasks in a sedentary occupation. Moreover, to the extent that the Veteran asserts he is unable to obtain and maintain employment due to his service-connected PTSD, the Board points out that the effective date for the grant of service connection for PTSD is February 12, 2015, after March 26, 2014, thus, this condition cannot be considered when evaluating his employability for this period. As such, for the rating period prior to March 26, 2014, the Veteran's service-connected disabilities for not render him unable to obtain or retain substantially gainful employment nor do they render him unemployable such that referral for extraschedular consideration of unemployability is warranted. 38 C.F.R. § 4.16. 2. Entitlement to TDIU for the rating period since March 26, 2014. As of March 26, 2014, the Veteran was in receipt of a total rating for his aortic stenosis with stable angina, status-post heart valve replacement with history of a heart murmur. Additionally, as of this date, he was awarded entitlement to special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ, effective March 26, 20132008. The Veteran was also granted special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for aortic stenosis with stable angina, status-post heart valve replacement with history of a heart murmur, rated as 100 percent disabling and additional service-connected disabilities of diabetes mellitus with erectile dysfunction with diabetic nephropathy, hypertension, right and left sciatic peripheral neuropathy, right and left femoral diabetic neuropathy, right and left lower extremity peripheral vascular disease, PTSD, right and left radicular peripheral neuropathy, abdominal scar, and sternum scar, independently ratable at 60 percent or more. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that a 100 percent schedular rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. See 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 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, such as TDIU. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for a 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. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (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 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). As noted above, the Veteran is in receipt of a 100 percent disability rating for his service-connected aortic stenosis and SMC under both 38 U.S.C. § 1114(k) and 38 U.S.C. § 1114(s) effective March 26, 2014. Therefore, given that the Veteran is already in receipt of SMC benefits, the issue of entitlement to a TDIU from March 26, 2014 is dismissed as moot as there are no additional benefits available given that he has a total rating, and is receiving all available benefits under SMC. See Buie, 24 Vet. App. 242. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.