Citation Nr: 21069498 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-35 702 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 12, 2017 is denied. Entitlement to a TDIU for the period after April 12, 2017 is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities for the period prior to April 12, 2017. 2. Effective April 12, 2017, the Veteran's service-connected disabilities result in a schedular 100 percent evaluation; the issue of entitlement to TDIU is rendered moot. Additional disabilities resulted in special monthly compensation being paid at the housebound rate as of that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 12, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.16. 2. As of April 12, 2017, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1967 to June 1970. The Board notes that this appeal has a rather lengthy procedural history. Most recently, in March 2021, the Board decided 2 issues and remanded the remaining 4 issues for development. During development, all of the issues concerning entitlement to service connection were granted and are no longer on appeal. Therefore, the issue of entitlement to a TDIU remains on appeal and has been returned to the Board for further consideration. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 12, 2017 The Veteran contends that his service-connected disabilities rendered him unemployable and that he is therefore entitled to a TDIU for the period prior to April 12, 2017. 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. Id. 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. For the Veteran to prevail in a claim for TDIU, the evidence must show that he or she is unable to pursue a substantially gainful occupation due to service-connected disabilities. The sole fact that a Veteran 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, 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). For the period prior to April 12, 2017, service connection was in effect for the following disabilities: posttraumatic stress disorder (PTSD) (50 percent); degenerative disc disease, intervertebral disc syndrome and spinal stenosis (40 percent); diabetes mellitus type II (20 percent); incomplete paralysis, sciatic nerve, external-internal popliteal nerve, posterior tibial nerve, left lower extremity (noncompensable); incomplete paralysis, sciatic nerve, external-internal popliteal nerve, posterior tibial nerve, right lower extremity (noncompensable); scar, left side of face (10 percent); tinnitus (10 percent); incomplete paralysis, internal saphenous and anterior crural (femoral), right lower extremity (noncompensable); paralysis of the left frontalis muscle (noncompensable); hearing loss, left ear (noncompensable); scar, left mastoid region (noncompensable); incomplete paralysis, internal saphenous, left lower extremity (noncompensable); incomplete paralysis, external cutaneous nerve, left lower extremity (noncompensable); external cutaneous nerve, right lower extremity (noncompensable); and diabetic retinopathy (noncompensable). For the period from March 26, 2012 to April 12, 2017, his combined rating was 80 percent, and it was 70 percent prior to then. Therefore, the Veteran met the schedular requirements. What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable during the applicable period. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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, 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). To begin, the Board observes that the Agency of Original Jurisdiction (AOJ) has repeatedly requested that the Veteran file a VA 21-8940, Application for Increased Compensation Based on Unemployability to support his TDIU claim. His claim for TDIU was most recently remanded in March 2021 for evidentiary development. The AOJ took appropriate steps and sent the Veteran a notification letter in March 2021 that included instructions to submit a VA Form 21-8940. A July 2021 supplemental statement of the case informed the Veteran that his TDIU claim was denied, at least in part due to his failure to submit this form. No response to these requests has been received to date. The Board is left to consider the available evidence of record. At an August 2014 VA eye examination, the examiner stated that the Veteran's service-connected diabetic retinopathy does not impact his ability to work. A VA treatment note from October 2013 indicates that the Veteran was working as a salesman in the finance and insurance industry. A September 2010 VA report reveals that the Veteran was working part-time in sales, and had been working for 1-2 years prior to that time as an account manager. Finally, VA treatment records from as early April 2010 indicate that the Veteran previously worked in the construction industry, but when the "bubble burst" he began struggling financially and became unemployed. The above evidence reflects that the Veteran's service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment for the period prior to April 12, 2017. Importantly, it appears that the Veteran was working for at least some of the time prior to filing his claim. Furthermore, the Veteran has not complied with the requests to submit a VA Form 21-8940 in support of his TDIU claim so that further evidence from past employers could be requested or reviewed. While not required, VA is stymied in reviewing further evidence on this issue. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disabilities alone did not preclude him from obtaining and maintaining substantially gainful employment for the period prior to April 12, 2017. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). (Continued on the next page) 2. Entitlement to a TDIU for the period after April 12, 2017 The Board notes that the Veteran is in receipt of a 100 percent schedular rating as of April 12, 2017, along with an award of special monthly compensation at the housebound rate with additional disabilities rated 60 percent or more. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Here that award has been made rendering the TDIU claim moot. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.