Citation Nr: 21074765 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-18 523 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Throughout the entire appeal period, the preponderance of the evidence is against finding that the Veteran is unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to November 1992, and from August 2004 to October 2005, with additional National Guard service. In July 2018, August 2020, and April 2021, in pertinent part, the Board remanded the Veteran's TDIU claim for additional development. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board observes that the Veteran is in receipt of a 100 percent rating from July 22, 2019, which will be discussed more below. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. For the Veteran to prevail in a claim for TDIU, the evidence must show that he or she is unable to pursue a substantially gainful occupation due to service-connected disabilities. The sole fact that a Veteran 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, but the ultimate question 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 (1993). For the period beginning October 25, 2013, service connection has been in effect for the following disabilities: posttraumatic stress disorder (PTSD) (50 percent); bilateral pes planus to include plantar fascitis (50 percent); intervertebral disc syndrome to include osteoarthritis of the thoracic-lumbosacral spine (40 percent); chondromalacia of the left knee (20 percent); flexion of the left knee (10 percent); peripheral neuropathy of the left lower extremity (10 percent); and hypertension (noncompensable). For the period from October 25, 2013 to July 21, 2019, his combined rating was 90 percent. What remains to be determined is whether the Veteran's service-connected disabilities render him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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, but the ultimate question 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 (1993). To begin, the Board observes that the Agency of Original Jurisdiction (AOJ) has repeatedly requested that the Veteran file a VA 21-8940, Application for Increased Compensation Based on Unemployability to support his TDIU claim. His claim for TDIU was most recently remanded in April 2021 for evidentiary development. The AOJ took appropriate steps and sent the Veteran a notification letter in July 2021 that included instructions to submit a VA Form 21-8940. A September 2021 supplemental statement of the case (SSOC) informed the Veteran that his TDIU claim was denied, at least in part due to his failure to submit this form. No response to these requests has been received to date and no mail has been returned as undeliverable. The Board is left to consider the available evidence of record. It appears that the Veteran was unemployed at some point, and in an October 2013 report, the Veteran's psychologist, Dr. N., discussed his inability to manage employment. At an August 2014 VA knee examination, the examiner stated that the Veteran's service-connected left knee disability may hurt, but it would not interfere with sedentary work. It was also reported that the Veteran would have a decreased tolerance for any weight-bearing activity. During an August 2014 VA psychiatric examination, the Veteran described his work history and stated that he resigned from his most recent employer in 2013 and has been looking for a job since that time. However, a July 2019 treatment note from a private psychiatrist indicates that the Veteran was working at that time. Furthermore, the Veteran was unable to keep his appointment for a VA examination in December 2019 because "he could not get off work to attend the exam." At a December 2019 VA psychiatric examination, the Veteran stated that he currently works in the civil service and has worked there since approximately November 2015. He also stated that he works in a limited capacity due to his joint pain, which limits his ability to function in a physically active role at work. The above evidence reflects that the Veteran's service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment at any point during the appellate period. Importantly, it appears that the Veteran has been working for at least some of the time prior to filing his claim. Furthermore, the Veteran has not complied with the requests to submit a VA Form 21-8940 in support of his TDIU claim. The Board notes that the Veteran is in receipt of a 100 percent schedular rating as of July 22, 2019. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Here, there is nothing of record to suggest that a TDIU is warranted, and the 100 percent rating in effect since July 22, 2019 is a combined rating based on all of the Veteran's service-connected disabilities when taken as a whole. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disabilities alone have not precluded him from obtaining and maintaining substantially gainful employment at any point during the appellate period. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.