Citation Nr: 21006325 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-11 960 DATE: February 3, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The current appeal arises from a March 26, 2015, claim for an increased rating for diabetes mellitus. 2. As of March 26, 2015, the Veteran has been assigned a 100 percent schedular rating and special monthly compensation. CONCLUSION OF LAW The claim for TDIU is moot. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the U.S. Air Force from June 1973 to October 1983. During this time, he was awarded the Air Force Good Conduct Service and the National Defense Service Medal, among other awards. The Veteran filed a claim for an increased rating for his service connected diabetes mellitus in March 2015. In July 2015, the agency of original jurisdiction denied a higher rating. The Veteran perfected a timely appeal of the denial to the Board of Veterans’ Appeals (Board). In August 2020, the Board denied a higher rating for diabetes mellitus and determined that TDIU was raised on the record and was part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board therefore remanded the issue of entitlement to TDIU for further development, to include inviting the Veteran to complete a formal TDIU application form (VA Form 21-8940). The matter has returned to the Board for an appellate review. Pursuant to the Board’s August 2020 remand, the Veteran was forwarded a TDIU application form. However, the Veteran did not respond. Thereafter, in a September 2020 rating decision, a reduction from 100 percent to 30 percent for the Veteran’s non-hodgkin's lymphoma with bone marrow transplant was reversed based on clear and unmistakable error (CUE). In that same rating decision, the RO granted entitlement to special monthly compensation based on housebound status effective from March 26, 2015. Entitlement to a total disability evaluation based on individual unemployability (TDIU) VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Board observes that the Veteran’s combined evaluation for compensation has been 100 percent since September 23, 2010. Since March 26, 2015, he has also been in receipt of special monthly compensation at the housebound rate due to his non-hodgkin's lymphoma disability being rated at 100 percent and his service-connected PTSD being independently ratable at 70 percent. The Board recognizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Indeed, the Veteran is in receipt of a 100 percent schedular rating and special monthly compensation since March 26, 2015. As his claim for TDIU has been pending since he filed his claim for an increased rating that was received on March 26, 2015, the Veteran has been in receipt of a total schedular rating and special monthly compensation throughout the course of the entire period on appeal. The Board believes that the total schedular rating that was assigned as of March 26, 2015 does, in fact, moot the TDIU claim on and after that date. In this case, along with the assignment of the 100 percent schedular rating for non-hodgkin's lymphoma with bone marrow transplant, the Veteran was also awarded special monthly compensation under 38 U.S.C. § 1114(s), effective March 26, 2015. The Veteran's VA benefits are already maximized for the time period on and after March 26, 2015, during which he had a total schedular rating, so consideration of TDIU would result in no additional discernable benefit. Therefore, to the extent the TDIU claim encompasses the time periods after March 26, 2015 during which the   Veteran was already awarded a 100 percent schedular rating plus special monthly compensation, that part of the claim is moot. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.