Citation Nr: 21074247 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-12 469A DATE: December 14, 2021 ORDER For the rating period from February 14, 2014 through September 16, 2014, the appeal seeking entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is denied. For the rating period from September 17, 2014, through July 17, 2017, entitlement to a TDIU is dismissed as moot. For the rating period from July 18, 2017, entitlement to a TDIU is denied. FINDINGS OF FACT 1. For the rating period from February 14, 2014 through September 16, 2014, the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful employment. 2. The Veteran is in receipt of a 100 percent combined schedular rating from September 17, 2014 through July 17, 2017. 3. In light of the 100 percent combined schedular rating for the Veteran's service-connected disabilities for the rating period from September 17, 2014 through July 17, 2017, there is no longer a case or controversy with respect to the issue of entitlement to a TDIU. 4. In August 2017, the Veteran was awarded service connection for PTSD and assigned a 50 percent rating, effective from July 18, 2017. 5. For the rating period from July 18, 2017, entitlement to a TDIU is denied. CONCLUSIONS OF LAW 1. For the rating period from February 14, 2014 through September 16, 2014, the criteria for an award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b). 2. For the rating period from September 17, 2014 through July 17, 2017, the claim for entitlement to a TDIU is dismissed as moot. 38 U.S.C. §§ 1155, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. For the rating period from July 18, 2017, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty military service from November 1963 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office. In October 2018 and September 2020, the Board remanded the claim for further development. The case has now returned for adjudication. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) TDIU Laws and Analysis A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). 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." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have 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. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Rating Period from February 14, 2014 through September 16, 2014 As it pertains to the rating period from February 14, 2014 (date of claim on appeal) to September 16, 2014, the Veteran met the schedular criteria requirements under 38 C.F.R. § 4.16(a). Specifically, the Veteran was service connected for coronary artery disease (CAD), rated as 60 percent disabling; obstructive sleep apnea, rated as 50 percent disabling; diabetes mellitus, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran had noncompensable ratings assigned for allergic conjunctivitis, medial epicondylitis, right, and medial epicondylitis, left, head injury with scalp laceration, and tinea pedis. The Veteran had a combined disability rating of 90 percent. Therefore, the minimum schedular criteria for TDIU are met for this period. In his April 2014 formal claim for a TDIU, the Veteran indicated that he last worked full-time in 2006. He had worked as a meatcutter since 1986. He reported that he did not leave his job due to his disability. He reported that he was a "walking time bomb" due to his myocardial infarction and need for nitroglycerin and had to say close to home and medical facilities. The Veteran's DD-214 indicates that he served approximately 20 years. He worked in the galley. A June 2014 VA Form 21-4192 (Request for Employment Information) indicated that the Veteran stopped working due to "early retirement." It was noted that the Veteran was offered VSIP (voluntary separation incentive payment) incentive and early retirement due to the Veteran's age or disability. Private medical records dating in 2013 show regular checkups. In December 2013, the assessment was normal physical examination; the Veteran's diabetes was noted to be uncomplicated, uncontrolled and the Veteran was to restart diet and exercise. The Veteran was afforded a VA heart examination in April 2014. The Veteran reported that he had worked as a mess management specialist while in the Navy. The Veteran's medical history noted that he had a myocardial infarction in 1985 and percutaneous coronary intervention with stent placement in 2010. The Veteran reported that he walked three to four miles every morning for one and a half hours. The Veteran's estimated METs level was greater than three METs but less than five METs, consisted with activities such as light yard work, mowing, and brisk walking. The examiner noted that the Veteran's ischemic heart disease did not impact his ability to work. At an April 2014 VA sleep apnea examination, the Veteran reported that he did not feel sleepy during daytime due to treatment with CPAP. The examiner noted that the Veteran's sleep apnea did not impact his ability to work. A June 2014 medical letter from the Veteran's cardiologist stated that he had treated the Veteran for the past year for his cardiac conditions, and that he assessed the Veteran's current condition as stable and unchanged. An August 2014 addendum to the April 2014 VA heart exam notes that an echocardiogram result would provide a better metric of the Veteran's cardiac function rather than an estimated METS score. On review, the Board finds that the record does not demonstrate that the Veteran's service-connected disabilities during the February 14, 2014 through September 16, 2014 preclude substantially gainful employment. The medical evidence shows no functional impairment in the Veteran's ability to work due to his service-connected disabilities. Although the Veteran reports that his CAD would prevent him from working, both the Veteran's private cardiologist and the VA examiner noted that the Veteran's cardiac condition was stable, and the VA examiner noted that the cardiac condition did not impair the Veteran's ability to work. The Veteran indicated that he voluntarily retired and that such retirement was not due to the negative impact of a service-connected disability. While the Veteran may experience some reduced physical capacity due to his disabilities, such impairment in working ability is recognized by his schedular rating. There is no medical evidence which supports a finding that the Veteran was unable to obtain or sustain substantially gainful employment from February 14, 2014 through September 16, 2014 due to his service-connected disabilities. Therefore, entitlement to a TDIU is denied from February 14, 2014 through September 16, 2014. 2. Rating Period from September 17, 2014 through July 17, 2017 With respect to the rating period from September 17, 2104 through July 19, 2017, the Veteran was granted service connection for additional disabilities. Specifically, the additional disabilities include: diabetic nephropathy, rated as 60 percent disabling from September 17, 2014; lateral epicondylitis of the right elbow, rated as 10 percent disabling; lateral epicondylitis of the left elbow, rated as 10 percent disabling, from March 24, 2015; lateral epicondylitis of the right elbow (impaired supination and pronation), rated as 20 percent disabling; lateral epicondylitis of the left elbow (impaired supination and pronation), rated as 20 percent disabling, from May 21, 2015; and allergic conjunctivitis, rated as 10 percent disabling, from January 19, 2016. As a result of the additional assigned ratings, the Veteran is in receipt of a 100 percent total combined schedular rating, effective from September 17, 2014. Assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012) by having an "additional" disability of 60 percent or more ("housebound" rate)). In Bradley, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. In this case, as the total disability rating was predicated on the adjudicated service-connected disabilities for the period from September 14, 2014 through July 17, 2017, there is no other disability upon which a TDIU could be assigned. As such, the issue of entitlement to a TDIU from September 14, 2014 through July 17, 2017 is moot and must be dismissed. 38 U.S.C. § 7105(d)(5). 3. Rating Period from July 18, 2017 In August 2017, the Veteran was awarded service connection for PTSD and assigned a 50 percent rating, effective from July 18, 2017. Thus, as the Veteran is now service connected for a disability which was not included in the earlier grant of the 100 combined disability rating, the Board may now consider whether a TDIU is warranted based solely due to the Veteran's PTSD. The Veteran's additional disability, PTSD, is not rated as 60 percent disabling, Thus, from September 17, 2017, there are no service-connected disabilities that support a grant of TDIU independent of the Veteran's combined 100 percent schedular rating. The Board has considered the Veteran's contentions that he cannot hold a job due to gross impairment of his behavior, his thought processes and communication, that his depression affects his ability to function effectively, and that he would be a burden to en employer due to the severity of his mental health issues. The Board is sympathetic; however, the Veteran's PTSD does not meet the requisite rating alone to support a TDIU. The Veteran's occupational impairment due to PTSD is contemplate within the assigned 50 percent rating. Accordingly, entitlement to a TDIU from September 17, 2017, is not warranted. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.