Citation Nr: 21073246 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-33 177 DATE: December 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted for the periods from April 29, 2015 to June 9, 2016 and from August 1, 2018 to May 20, 2021. FINDING OF FACT For the periods from April 29, 2015 to June 9, 2016 and from August 1, 2018 to May 20, 2021, the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW For the periods from April 29, 2015 to June 9, 2016 and August 1, 2018 to May 20, 2021, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for lung cancer, nephropathy, posttraumatic stress disorder, diabetes mellitus with erectile dysfunction and retinopathy of the right eye, bilateral lower extremity peripheral neuropathy, tinnitus, supraventricular arrhythmia, bilateral lower extremity peripheral neuropathy (sciatic), scars for lobectomy, bilateral hearing loss, and scars from chest surgery. His combined disability rating during this appeal was 70 percent from November 10, 2010, 80 percent from November 10, 2011, 90 percent from April 29, 2015, 100 percent from June 9, 2016, 90 percent from August 1, 2018, and 100 percent May 20, 2021. He has met the schedular criteria for consideration under 38 C.F.R. § 4.16(a). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. As noted above, the Veteran's combined disability rating has been 100 percent from June 9, 2016 to July 31, 2018 and May 20, 2021 to present. The United States Court of Appeals for Veterans Claims (Court) has held that the award of a 100 percent disability rating does not render moot a claim of entitlement to a TDIU. See Bradley, 22 Vet. App. 280. In Bradley, the Court determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Id. at 293-94. As noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. In the case at hand, the Veteran was awarded SMC during the periods he was awarded a 100 percent rating for his lung cancer. SMC was awarded based on the remainder of the Veteran's service-connected disabilities, and, therefore, the Board finds the issuance of TDIU is moot during these periods and will not be considered for TDIU. As such, the Board will determine whether TDIU is warranted from April 29, 2015 to June 8, 2016 and August 1, 2018 to May 19, 2021. The Board notes the Veteran filed and intent to file a claim which was received by the VA on April 29, 2015. In cases involving increased in disability compensation, the effective date shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability has occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Given such, the Board finds the earliest it can grant TDIU is April 29, 2015, the date the intent to file was received. The Veteran's June 2015 VA Form 21-8940, "Veterans Application for Increased Compensation Based on Unemployability" shows that he last worked full-time in May 2009 for a private company. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted from April 29, 2015 to June 9, 2016 and August 1, 2018 to May 19, 2021. In the report of the September 2015 VA examination for the Veteran's service-connected PTSD, the examiner found that his symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Furthermore, to support his finding, the examiner noted the Veteran's assertion that his irritability would affect his functioning at jobs. See September 2015 VA Review Post Traumatic Stress Disorder Disability Benefits Questionnaire (DBQ). During the June 2017 VA examinations for scars and respiratory conditions, it was found that both conditions impacted his ability to work. The examiner noted that his respiratory condition impacted his ability to work because his dyspnea restricts ambulation to less than three blocks and right lateral chest wall pain with coughing and repeated stretching of the right upper extremity. See June 2017 VA Respiratory Conditions DBQ. As for the Veteran's scars, the examiner noted that the scars were painful in the lateral chest wall with overhead use of the right upper extremity and with any direct pressure to the scars. See June 2017 VA Scars/Disfigurement DBQ. The Board notes a February 2017 private treatment record from St. John Hospital and Medical Center for his service-connected lung cancer. Here, the physician noted that he is restricted from physically strenuous activity that ambulatory and able to carry out work of a light or sedentary nature. Based on the above, the Board finds the Veteran is warranted to TDIU effective April 29, 2015, the date his intent to file was received. When the Board considers all service-connected impairments together, TDIU is warranted. Furthermore, the September 2015 PTSD examination, June 2017 scars and respiratory examinations, and VA medical treatment records support a finding of TDIU. The records also establish that the Veteran has not worked since 2009. Based on the evidence of record, the Veteran meets the threshold requirements of TDIU under 38 C.F.R. § 4.16(a), and the Board finds that the evidence is at least in equipoise to show that the cumulative effect of the Veteran's service-connected disabilities has prevented him from securing and following a substantially gainful occupation from. For the noted time periods, the appeal is thus granted. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.