Citation Nr: 21007775 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-14 559 DATE: February 10, 2021 ORDER For the entire period on appeal, entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is dismissed. FINDING OF FACT For the entire period on appeal, a total (100 percent) rating and an award of special monthly compensation (SMC) based on one service-connected disability rated 100 percent disabling and additional service connected disabilities independently ratable at 60 percent or more have been awarded, leaving no part of this period where the schedular rating is less than total. CONCLUSION OF LAW The matter of the Veteran’s entitlement to a TDIU due to service-connected disabilities has been rendered moot by the award of a total (100 percent) rating and SMC based one service-connected disability rated 100 percent disabling and additional service connected disabilities independently ratable at 60 percent or more, leaving no question of law or fact to decide regarding the TDIU issue for the entire period on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to February 1980. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2011 rating decision in which the RO denied entitlement to TDIU. In August 2017, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. This matter was previously before the Board in March 2018 where adjudication was deferred until development of separate matters were completed due to TDIU being inextricably intertwined with these issues. The requested development has been completed and the Veteran’s appeal is now properly before the Board. 1. For the entire period on appeal, entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is dismissed. The Veteran has asserted that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. The Veteran submitted his claim for TDIU October 27, 2011. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with the veteran’s education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. 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 be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In a February 2014 rating decision, the RO awarded a 100 percent disability rating for major depressive disorder, effective December 31, 2007. In addition, the RO awarded SMC based on one service-connected disability rated 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent or more, from December 31, 2007, by way of an August 2020 rating decision (there is an erroneous notation of November 27, 2018 as the effective date of the award of SMC in the February 2020 rating decision, but SMC was actually awarded from December 31, 2007). Hence, there remains no time during the claim period where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of SMC under 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, however, the Veteran has already been awarded SMC under 38 U.S.C. § 1114 (s) based on one service-connected disability rated 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent or more during the entire period since December 31, 2007. (Continued on the next page)   For these reasons, the Board concludes that the matter of the Veteran’s entitlement to an award of a TDIU due to service-connected disabilities is rendered moot for the period on appeal by the award of a 100 percent schedular (“total”) rating and the award of SMC during this period, leaving no question of law or fact to decide regarding the TDIU issue. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. In consideration thereof, the Board finds that the issue of entitlement to a TDIU due to service-connected disabilities must be dismissed as moot. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.