Citation Nr: 21073975 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-06 234A DATE: December 13, 2021 ORDER The claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include consideration of special monthly compensation (SMC), is denied. FINDINGS OF FACT 1. Prior to November 2, 2016, the Veteran does not have a combined disability rating of at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more to meet the criteria for a TDIU on a schedular basis, and the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. 2. From November 2, 2016, a 100 percent combined schedular rating has been assigned and no service-connected disability has been rated at 100 percent disabling. CONCLUSION OF LAW The criteria for a TDIU, to include consideration of SMC, have not been met. 38 U.S.C. §§ 1114(s), 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Navy from June 1965 to May 1967. In June 2021, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ). In particular, the remand instructions noted the AOJ to provide the Veteran with proper Veterans Claims Assistance Act (VCAA) notice that informs the Veteran of the evidence and information necessary to establish entitlement to a TDIU and to adjudicate the claim. The Board finds that the AOJ has satisfied the June 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, a notice was sent in August 2021 outlining evidence that could support a TDIU claim. See August 2021 Custom 5103. In September 2021, the Veteran submitted a signed acknowledgment of that notice. See September 2021 5103 Notice Acknowledgment. Second, the case was readjudicated in September 2021 and October 2021 supplemental statements of the case (SSOCs). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. 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 A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran's claim for a TDIU was raised during the pendency of his appeal for an increased rating for PTSD pursuant to Rice. A total disability rating for compensation purposes may be assigned when the 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, 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. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular 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 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). 1. Entitlement to a TDIU prior to November 2, 2016 At the outset, the Board notes that on September 21, 2017, the Veteran filed an increased rating claim on appeal for PTSD. See September 2017 VA form 21-526EZ. Therefore, consideration for TDIU is warranted from September 21, 2016 (one year prior to the date of claim). Prior to November 2, 2016, the Veteran was service connected for bilateral hearing loss with a disability rating of 30 percent, PTSD with a disability rating of 30 percent disabling, chloracne with a disability rating of 30 percent, and tinnitus with a disability rating of 10 percent. The Veteran also has a service-connected disability at a non-compensable rating of scars of face, back, and arms. While the Veteran had a combined disability rating of 70 percent, he did not have at least one disability ratable at 40 percent pursuant to 38 C.F.R. § 4.16(a). As a result, the Board considers whether there is evidence to warrant remand for consideration of a TDIU rating on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), at any time during the appeal period prior to November 2, 2016. Review of the record includes the following pertinent documents related to the claim on appeal. The record reflects that the Veteran has some college education, obtained a HVAC associate degree, last worked in 2007, and was not employed during the relevant period at hand. See September 2020 VA form 21-8940. While just outside of the relevant period at hand, on September 12, 2016, the Veteran reported that his PTSD and related depression symptoms were unchanged and tolerable. See December 2016 CAPRI. On October 11, 2016, the Veteran presented for problems with his hearing aids, as he indicated that "everyone seems to mumble and soft female voices are difficult to hear." The Veteran's treatment provider adjusted the hearing aids and afterwards, he reported satisfaction with the subjective sound quality of the hearing aids. Id. On October 28, 2016, the Veteran described considerable related emotional distress due to his concern for a potential neuropathy issue; however, the Veteran noted that his mental health symptoms were tolerable, as he denied any perceived change in symptoms of PTSD or related depression. His treatment provider also indicated that the Veteran was personable, polite, pleasant, cooperative, spoke at length and in good depth, and was receptive to input and treatment recommendations. Id. The Board acknowledges that the Veteran was not working during this period and that the Veteran has indicated that his mental health and physical disabilities led him to retire. While the aforementioned records indicate that the Veteran's service-connected conditions interfered with his ability to perform his past jobs, they do not establish that the Veteran's service-connected disabilities, alone, were of sufficient severity to render him unable to secure and follow substantially gainful employment for which he was suited for at any time during the appeal period prior to November 2, 2016. Accordingly, the Board concludes that this claim on appeal for a TDIU prior to November 2, 2016 should not be submitted for extra-schedular consideration and must be denied. 2. Entitlement to a TDIU to include consideration of SMC, from November 2, 2016 As of November 2, 2016, the Veteran has been service connected for right upper peripheral neuropathy with a disability rating of 40 percent, bilateral hearing loss with a disability rating of 30 percent, PTSD with a disability rating of 30 percent, chloracne with a disability rating of 30 percent, left upper extremity peripheral neuropathy with a disability rating of 30 percent, right lower extremity peripheral neuropathy sciatic with a disability rating of 20 percent, left lower extremity peripheral neuropathy sciatic with a disability rating of 20 percent, left lower peripheral neuropathy femoral with a disability rating of 20 percent, right lower peripheral neuropathy with a disability rating of 20 percent, and tinnitus with a disability rating of 10 percent. The Veteran also has other service-connected disabilities at non-compensable ratings of scars of face, back and arms; right lower peripheral neuropathy, obturator; left lower peripheral neuropathy, external cutaneous nerve, right lower peripheral neuropathy, external cutaneous nerve, right lower peripheral neuropathy ilioinguinal nerve; left lower peripheral neuropathy ilioinguinal nerve; and hypertension. A 100 percent combined evaluation has been in effect since November 2, 2016. See 38 C.F.R. § 4.25. As a result, the Board considers whether there is evidence to warrant assignment of SMC at any time from November 2, 2016. SMC is payable at the housebound rate where the Veteran has a single service-connected disorder rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). Generally, subsection 1114(s) benefits are not available to a veteran whose total disability rating is based on multiple disabilities, none of which is rated as 100 percent disabling. That said, TDIU may satisfy the total rating element under section 1114(s), but only when that award is predicated on a single disability, rather than on multiple service-connected disorders. The evidence does not show, nor does the Veteran assert, that any one of his service-connected disabilities, by itself, renders him unemployable for the purposes of a TDIU constituting a 100 percent disability rating for the purposes of considering SMC under section 1114(s). Moreover, no service-connected disability has been rated at 100 percent disabling at any time during the appeal period; therefore, consideration of SMC at the housebound rate is not warranted in this case. T. Blake Carter Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, Associate 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.