Citation Nr: 21007673 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-16 895A DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 2, 2012 is denied. FINDING OF FACT Prior to October 2, 2012 the Veteran’s service-connected disabilities did not prevent him from securing or following gainful employment. CONCLUSION OF LAW Prior to October 2, 2012 the criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1965 to November 1967. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran’s attorney indicated in correspondence dated in April 2018 that the Veteran’s service-connected disabilities, to include the Veteran’s service-connected thoracolumbar spine disability impair the Veteran’s employment ability. Notably the Veteran’s underlying claim for the thoracolumbar spine disability was received on February 11, 2019, which is no longer in appellate status as the Board in a March 2019 decision denied entitlement to an initial rating in excess of 20 percent for the service-connected spondylosis of the thoracolumbar spine prior to September 30, 2017, and in excess of 40 percent thereafter. Thus, the issue of entitlement to TDIU is properly before the Board pursuant to Rice and the appeal period is from the date the Veteran’s claim for osteoarthritis of the thoracolumbar spine received on February 11, 2019. In August 2020 the Regional Office (RO) granted service connection for depressive disorder. In November 2020 the Board granted service connection for obstructive sleep apnea. Thus, these issues are no longer in appellate status. In November 2020 the Board remanded the issue of entitlement to TDIU. Subsequently, in a November 2020 rating decision the RO granted entitlement to TDIU effective October 2, 2012 until May 28, 2014, the date when the Veteran received a combined schedular rating of 100 percent for his service-connected disabilities. The RO noted TDIU was being granted including due to the Veteran’s service-connected thoracolumbar spine disability, left lower extremity radiculopathy, arthritis of the right wrist and elbow, and hearing impairment. Notably, a TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16 (a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a 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 TDIU predicated on a single disability may form the basis of an award of SMC. This case, however, is distinguished from Bradley as the grant of TDIU discussed above is not predicated on a single disability, but rather on multiple service-connected disabilities. As such, the issue of entitlement to TDIU from May 28, 2014 to the present is considered moot, as the Veteran is already in receipt of a combined schedular evaluation of 100 percent, and the findings in Bradley are not applicable in this case. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). The Board will, therefore, consider whether the Veteran’s service-connected disabilities preclude substantially gainful employment for the period prior to October 2, 2012. Thus the issue is characterized as reflected herein. Entitlement to TDIU prior to October 2, 2012. 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant 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). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As discussed above, the Veteran’s claim of entitlement to TDIU is on appeal pursuant to Rice since February 11, 2009. The Veteran is service connected for the following disabilities: depressive disorder rated as 70 percent disabling from May 28, 2014; obstructive sleep apnea rated 50 percent from May 28, 2014; arthritis of the thoracolumbar spine rated 20 percent from November 11, 2009 and 40 percent from September 30, 2017; radiculopathy of the left lower extremity rated 20 percent from May 28, 2014; radiculopathy (femoral nerve) of the left lower extremity rated 20 percent from September 30, 2017, 10 percent from November 16, 2018, and 20 percent from December 16, 2019; arthritis of the right elbow rated 10 percent from February 11, 2009; arthritis of the right wrist rated 10 percent from February 11, 2009; tinnitus rated 10 percent from February 11, 2009; radiculopathy of the right lower extremity rated 10 percent from May 28, 2014; bilateral hearing loss rated 50 percent from February 11, 2009 and 10 percent from October 4, 2014; radiculopathy (femoral nerve) of the right lower extremity rated 10 percent from September 30, 2017; and flexion deformity of the interphalangeal joint right fifth finger rated noncompensable from February 11, 2009. From February 11, 2009 the Veteran had a combined rating of 70 percent and from May 28, 2014 he has had a combined 100 percent rating. The Veteran meets the schedular criteria for TDIU from February 11, 2009 to May 27, 2014. In a March 2018 opinion, the examiner noted that the Veteran had to retire early in part due to his back pain. The examiner opined that after reviewing the claims folder and speaking with the Veteran’s his service-connected thoracolumbar spine disorder, bilateral lower extremity radiculopathy, hearing loss, tinnitus, right wrist traumatic arthritis, and arthritis of the right elbow prevent the Veteran from maintaining gainful work in any employment. The Veteran’s TDIU claim, VA Form 21-8940, was received in September 2019, whereby the Veteran indicated that he last worked full time in October 2012. He noted that he worked over 40 hours per week as a truck driver from January 1, 2006 to October 1, 2012 and had a high school education. Thus, the evidence is against the award of TDIU prior to October 2, 2012 as the evidence shows that the Veteran was working full time until October 1, 2012. Consequently, TDIU is not warranted prior to October 2, 2012. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Therefore, the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.