Citation Nr: 21072919 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-54 550 DATE: December 6, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 27, 2019, and from February 1, 2021 to May 12, 2021, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history, prior to June 27, 2019, and from February 1, 2021 to May 12, 2021. CONCLUSION OF LAW The criteria for a TDIU, prior to June 27, 2019, and from February 1, 2021 to May 12, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2005 to March 2010 and from June 2014 to July 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office. In November 2020, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the record. TDIU At the outset, the Board notes that the Veteran is in receipt of a combined 100 percent disability rating effective May 13, 2021. A TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (SMC warranted where Veteran has a totally rated service-connected disability, as well as "additional service-connected disabilities independently ratable at 60 percent or more"). Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of section 1114(s)); Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Thus, pursuant to Bradley and Buie, VA has a duty to maximize benefits and therefore must consider the TDIU issue for the entire period covered by the claim to include whether a TDIU based on a single disability is warranted. In this case, however, the grant of TDIU is not be predicated on a single disability but on multiple service-connected disabilities. Specifically, the grant of entitlement to TDIU is based on the cumulative symptomatology associated with the Veteran's service-connected disabilities, as the evidence discussed infra reflects that there is no single disability that causes the Veteran's unemployability. Therefore, the grant of TDIU would be based on impairment from several service-connected disabilities, and not just a single disability. Other than the period discussed in the next paragraph, the Veteran has had no single service-connected disability that is rated at 100 percent, and his TDIU is predicated on multiple service-connected disabilities; thus, the percentage rating criteria for SMC under 38 U.S.C. § 1114 (s)(1) have not been met at any point during the appeal period. Therefore, entitlement to a TDIU after May 13, 2021 is moot, as the Veteran is already in receipt of a combined schedular evaluation of 100 percent effective as of that date, and the TDIU being granted herein is not based on a single disability and thus cannot assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s)(1). Finally, the Board notes that for the period from June 27, 2019 to February 1, 2021, the Veteran was in receipt of a 100 percent disability rating for right upper lobe lung cancer. From August 4, 2020 to February 1, 2021, he was also in receipt of a 100 percent disability rating for metastatic cancer to the kidney. In addition to these ratings, the Veteran during these periods also had separate multiple disability ratings which, when combined, were more than 60 percent. Thus, he received special monthly compensation under 38 U.S.C. § 1114 (s) for this period. As he was in receipt of the maximum benefits available, the issue of entitlement to TDIU from June 27, 2019 to February 1, 2021 is also moot. Analysis 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). 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). 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, 4.19. 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). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran asserts that his service-connected disabilities, collectively, render him unable to work. Review of the record shows that, for the entire appeal period, the Veteran has met the schedular threshold for consideration of a TDIU. Additionally, the record shows the Veteran's last employment consisted of a job washing cars, but that he was unable to continue doing so, due to problems with his service-connected shoulder and back. An attempt to work at another job, this time detailing cars, was derailed by the Veteran's medical appointments and medications taken to treat his service-connected disabilities. With respect to functional impairment, the Veteran's record contains multiple examples of how his service-connected disabilities would impact his ability to work. At an October 2017 VA examination, the examiner concluded that the Veteran's inability to lift more than 5 pounds, to bend or twist his spine, and to walk, sit or stand for a prolonged period of time, would impact his ability to work. While participating in VA Vocational Rehabilitation, the Veteran's counselor noted that the Veteran mixed up appointment dates, and that he was working at the time but was struggling to complete even a 4-hour shift. Although it is not clear from the note exactly which disability, or combination of disabilities, was causing difficulties, the Board assumes from the Veteran's subsequent statements and the evidence of record that it was due to his service-connected musculoskeletal disabilities, as well as the medication and treatment of his service-connected cancer. At a May 2018 hearing before a Decision Review Officer, the Veteran testified that, due to his service-connected disabilities, he was unable to stand or sit for long periods of time. He was unable to focus, due to cancer treatment. He could not turn his head, causing driving difficulties in jobs that required such. A June 2018 statement from his mother described how the Veteran was unable to make appointments without her assistance, due to memory issues and panic attacks. She held a power of attorney over his affairs, and explained how his medications made him drowsy and unable to drive. The Veteran's roommate provided a similar statement in July 2018, in which she described how the Veteran took hours to complete simple tasks such as washing dishes, and multiple days to mow the lawn. Simply attending medical appointments exhausted the Veteran. At his October 2020 hearing before the Board, the Veteran testified that he had experienced an array of symptoms over the course of his claim which he felt impacted his ability to work. Specifically, he described an inability to obtain a good night's sleep, or to focus or concentrate when awake. His symptoms would be of a lesser severity on some days; other days, he could not get out of bed. He missed appointments and experienced memory loss. The Veteran described feeling lethargic, having dizzy spells, and being unable to do simple tasks such as shopping, due to fatigue. He testified that he took multiple medications for his service-connected disabilities, including opioids, which would prevent him from obtaining or maintaining employment. The Veteran further testified as to the circumstances of his job washing cars, in that he kept oversleeping and missing the shuttle that would take him to the job. He described how his shoulder and back problems would cause him to require frequent rest while working. He felt he could not stand behind a cash register at a retail job, because he would need to sit and rest often. In this case, the Board has also paid particular attention to the Veteran's work history as well as his level of education. In this respect, the record shows his education level consists of a high school diploma and some college, without further training. Further, his employment history dating back to his discharge from service has been comprised entirely of manual labor positions, washing or detailing cars. (Continued on the next page) The question of employability is ultimately a legal one, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for TDIU determination on VA, not a medical examiner). The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment consistent with his education and work history due to the combined effects of his service-connected disabilities. In this regard, the Board finds the Veteran's testimony as to the nature of his service-connected disabilities and their resulting functional impairment is competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Therefore, the Board resolves all doubt in the Veteran's favor and finds that he is unable to secure or follow a substantially gainful occupation consistent with his education and work history. Consequently, a TDIU is warranted. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.