Citation Nr: 21070021 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-06 839 DATE: November 22, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) prior to January 14, 2019 is denied. The issue of entitlement to total disability based on individual unemployability (TDIU) since January 14, 2019 is dismissed. FINDINGS OF FACT 1. Prior to January 14, 2019, the Veteran's service-connected disabilities were not shown to be of such severity so as to preclude substantially gainful employment. 2. Since January 14, 2019, as the Veteran has been granted a 100 percent rating for coronary artery disease (CAD) and CAD is the only service-connected disability as the basis for a grant of TDIU, the issue of entitlement to TDIU since January 14, 2019 is moot. CONCLUSIONS OF LAW 1. The criteria for assignment of a TDIU prior to January 14, 2019 are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 2. The issue of entitlement to a TDIU since January 14, 2019 is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to June 1968. In May 2021, the Board found that the issue of entitlement to TDIU had arisen as part of the Veteran's increased rating claim for coronary artery disease under Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The Board remanded the matter of entitlement to TDIU for further development by the Agency of Original Jurisdiction (AOJ). The Board directed the AOJ to refer the matter to VA's Director of Compensation Service for extraschedular consideration. There has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to total disability based on individual unemployability (TDIU) prior to January 14, 2019 The Veteran contends that his service-connected disabilities prevent him from maintaining substantially gainful employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "Substantially gainful employment" contains economic and noneconomic components. The economic component means "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," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service-connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to January 14, 2019, the Veteran was in receipt of a 30 percent disability rating for coronary artery disease, and two separate noncompensable (zero percent) ratings for scars associated with bypass graft surgery. During this period, the Veteran had a combined disability rating of 30 percent. Although the Veteran's service-connected disabilities do not meet the threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the schedular ratings. 38 C.F.R. § 4.16(b). However, the Board has no authority to award TDIU under § 4.16(b) in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Rather, the rating board must submit to the Director, Compensation and Pension 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 § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director's decision is the same as the AOJ's as far as the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). In September 2021, the Director of Compensation conducted an administrative review of the record and addressed whether a TDIU was warranted on an extraschedular basis with consideration of the Veteran's service-connected disabilities. The Director determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevent employment. In Wages v. McDonald, 27 Vet. App. 233 (2015), the Court of Veterans Appeals (the Court) held that, because the decision of the Director of Compensation Services decision on a specific case as to entitlement to an extraschedular TDIU rating is "in essence the de facto [AOJ] decision", it does not constitute evidence, i.e., in the form of opinion evidence. As such, the decision is not entitled to probative value to be weighed against other evidence of record. Therefore, the Board does not attribute any particular evidentiary weight to the Director's September 2021 memorandum. The Board notes that, in May 2021, VA provided the Veteran a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, along with instructions to complete the form. This form requests education and work history necessary to adjudicate this claim. As of the date of this decision, no completed VA Form 21-8940 has been received by VA. The adjudication of this claim for total disability benefits based on individual unemployability includes consideration of whether the Veteran is capable of obtaining or maintaining any gainful employment consistent with his education and occupational experience. While failure to complete the form is not fatal to a claim of entitlement to a total disability rating based on individual unemployability 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 the claim. 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. "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." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As information requested by the VA Form 21-8940 regarding the Veteran's employment and eduction history has not been provided to the Board, the Board must adjudicate the claim based on the available evidence of record. The Board notes that, if the Veteran chooses to complete this form, he may submit it as part of a supplemental claim. See 38 C.F.R. § 3.2501. Regarding the medical evidence during the period prior to January 14, 2019, the Veteran has submitted medical treatment records dated November 30, 2017 with a Disability Benefits Questionnaire (DBQ) for heart conditions. The medical provider noted that the Veteran experienced fatigue with an exertion of 7 to 10 METs. The examiner noted evidence of cardiac hypertrophy or dilatation. The examiner checked the box for "yes" for impact on work and wrote that the Veteran continued to have "exertional chest pain and sternal wound pain which significantly limits his functional status." On the related medical testing, the documentation showed a left ventricular ejection fraction of 75 percent. The Veteran underwent a VA examination for cardiac conditions in December 2017. The examiner noted no cardiac hypertrophy or dilatation. The examiner recorded left ventricular ejection fraction of 60 percent. The Veteran denied symptoms related to cardiac diagnosis for METs interview-based testing. The Board notes that the Veteran had submitted a treadmill results test with the previous private medical treatment records. In the section for impact on work, the examiner checked the box for "yes" and then wrote, "the impact of the heart condition on the claimant's ability to work is s/p CABG." Based upon review of the evidence, the Board finds that the record does not demonstrate the inability to obtain or maintain gainful employment prior to January 14, 2019. While the record shows physical limitations, the record does not contain any evidence that the Veteran would be precluded from work due to his heart condition and associated scars. Although the medical evidence of record suggests physical limitations during the period prior to January 14, 2019, the evidence does not show that the Veteran would be precluded from performance of non-physical labor, such as working as a clerk, receptionist, or call center employee. In Ray v. Wilkie, 31 Vet. App. 58, the Court found that in cases where the Board has previously referred the issue of entitlement to a TDIU on an extraschedular basis to VA's Director of Compensation Services, the Board's obligation to provide an adequate statement of reasons and bases to support its decision extends to the Board's review of the Director's decision not to grant an extraschedular TDIU. In that regard, the Board must explain why the factual finding it made at the referral stage differs from its ultimate determination that a TDIU is not warranted. In the present case, the Board's May 2021 remand does not contain any particular factual findings to support its determination that the case should be referred to the Director of Compensation Services for extraschedular consideration other than to provide a summary of the relevant evidence and to note that the Board does not have jurisdiction to assign an extraschedular TDIU rating in the first instance. The Board did not make any factual conclusions regarding the Veteran's ability to work. Thus, in referring the case for extraschedular consideration, neither the Board nor the AOJ made factual findings that are contrary to the factual finding made in this decision that the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected heart condition and associated scars. Based on the foregoing evidence, the Board finds that the Veteran's service- connected heart condition and associated scars did not prevent him from obtaining and maintaining substantially gainful employment prior to January 14, 2019. A preponderance of the evidence from this period shows that the severity of the Veteran's conditions would not preclude gainful employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Board is cognizant that the Veteran would have occupational difficulty due to his heart condition, the preponderance of the evidence of record demonstrates that the Veteran was not precluded from securing and following substantially gainful employment due to his service-connected conditions during this period. The fact that a veteran was not working during this period, or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. After reviewing all the evidence of record, the Board concludes that the preponderance of the evidence does not show that the Veteran would be unable to obtain or maintain substantially gainful work due to his service-connected disabilities prior to January 14, 2019. 2. Entitlement to total disability based on individual unemployability (TDIU) since January 14, 2019 The United States 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). 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. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for 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 establish 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 a disability 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). However, in the present case, the Veteran's CAD is the primary basis for a grant of TDIU. The Veteran is also in receipt of non-compensable ratings for scars associated with bypass graft surgery. However, the Veteran does not contend, and the record does not show, that either one of these disabilities would support a grant of TDIU by itself. Therefore, the issue of entitlement to TDIU since January 14, 2019 is moot. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.