Citation Nr: 21009158 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-51 308 DATE: February 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to October 24, 2018 (with the exception of the period from August 17, 2016 to October 1, 2017) is granted; however, a TDIU from October 24, 2018, is denied. FINDINGS OF FACT 1. Prior to October 24, 2018 (with the exception of the period from August 17, 2016 to October 1, 2017), the evidence of record shows that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. 2. For the period from October 24, 2018, as a 100 percent combined schedular rating has been assigned, the matter of entitlement to a TDIU rating is rendered moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to October 24, 2018 (with the exception of the period from August 17, 2016 to October 1, 2017), have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for entitlement to a TDIU from October 24, 2018, have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1966 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board issued a decision denying entitlement to a TDIU. He appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court vacated the Board’s denial of entitlement to a TDIU, and remanded the issue to the Board pursuant to a Joint Motion for Partial Remand (JMPR). Entitlement to TDIU In October 2013, the Veteran filed a claim for increase for PTSD. In a 2019 statement in conjunction with the appeal for an increase for PTSD, the Veteran raised the issue of employability. The Veteran asserts he is unable to work as a result of his service-connected disabilities. In this case a TDIU claim has been raised by the record. Pursuant to the holding in Rice, a claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for PTSD at 70 percent, sleep apnea at 50 percent, degenerative arthritis of the left shoulder at 20 percent, degenerative arthritis of the right shoulder at 30 percent, total left shoulder replacement at 20 percent, lumbar spine at 10 percent, tinnitus at 10 percent, bilateral hearing loss at 10 percent, and residual scar of left shoulder and residual scar of the lumbosacral spine each with noncompensable ratings. The Veteran’s combined disability ratings from October 11, 2013 to August 17, 2016, and from October 1, 2017 to October 24, 2018 was 90 percent, and from October 24, 2018, his rating is combined to 100 percent. He was in receipt of a temporary 100 percent rating for his left shoulder replacement from August 17, 2016 to October 1, 2017. Therefore, from October 11, 2013, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. For the period between August 17, 2016 to October 1, 2017, the Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(s), and 38 C.F.R. § 3.350(i) on account of total left shoulder replacement rated 100 percent and additional service-connected disabilities, independently ratable at 60 percent or more. As the Veteran is in receipt of a total 100 percent combined evaluation for the period from October 24, 2018, analysis will follow for the period prior to and from that date. In a completed 21-8940, the Veteran reported having worked for the Forest Service, and then Department of Agriculture from 1962 to 1976. Following that, he worked for the Navy from 1976 to 1997, in personnel management, and then the Air Force from May 1996 to September 2011. He indicated he left his employment at the Travis Airforce Base in September 2011, as a result of his service-connected conditions. A request for employment information was completed for his prior position in July 2019, with his employer indicating the Veteran left his position due to taking optional retirement. In a February 2019 statement, he reported being unable to work due to his right shoulder, left shoulder, and OSA disabilities. He noted he last worked full time in September 2011 as a human resources officer and left his position due to his disabilities. He also noted he expected to receive retirement benefits. Since 2011, he reported he had tried to find another position in his field without success. During the March 2014 psychiatric exam, he reported leaving his employment in 2010 due to a move to another state. In December 2015 statement, he indicated he did not have continuous employment for years. At the October 2018 OSA examination, the examiner concluded the Veteran’s OSA had no impact on his ability to work. At the October 2018 shoulder examination, the examiner explained the functional impact as being the Veteran is unable to perform overhead activities, and would have limitations in reaching, lifting and carrying. At the May 2019 hearing examination, the examiner stated the Veteran’s hearing loss may make it difficult to hear coworkers accurately or at all if they do not gain his attention before speaking. The examiner further indicated that background noise will exacerbate any difficulties, and phone calls may also be difficult. Although there would not be a safety issue, his hearing loss would likely affect his efficiency. In a quiet, calm environment, with hearing aids, he would be less impacted. His tinnitus may affect focus, if severe enough. At the May 2019 back examination, functional impact was described as limitation in doing physical labor that would involve heavy lifting, carrying, climbing ladders, or crawling in confined spaces. A vocational assessment was conducted in May 2019 and the examiner noted multiple physical and mental limitations due to the Veteran’s PTSD, back, shoulders, and sleep apnea. After an interview and conducting a review of his records, the examiner found him to be vocationally disabled and unable to secure or perform any type of substantial gainful occupation within the general labor market since September 2011. In a July 2019 statement, he reported changing jobs in 1976 because of the stress on his shoulders. He reported at his most recent job as a human resource officer, having to climb into confined spaces to do audits, which was hard on his shoulders. He would go on site to review conditions and determine if hazardous duty pay was warranted. He stated his OSA keeps him from getting good sleep. He reported anxiety in small spaces, lack of motivation, difficulty concentrating, and interacting with people. He reported his back and shoulders caused him pain and difficulty sitting or walking. He stated sitting at a computer would cause pain due to his shoulder conditions. In August 2019, the Veteran underwent examinations assessing his OSA, PTSD, and shoulders. The Veteran reported his sleep apnea caused severe daytime fatigue, and he had difficulty staying awake and concentrating on tasks. The examiner concluded the Veteran’s OSA impacts his ability to work. His shoulders prevented him from lifting items heavier than 30 pounds, and he was unable to drive or sit at a desk with a mouse for more than two hours without experiencing shoulder pain. He had difficulty remembering and following instructions, had some poor judgment, low insight, poor concentration, and an inability to interact with coworkers and/or customers due to his PTSD symptoms. The examiner opined the Veteran may be able to work in a loosely supervised situation that required little interaction with the public. The examiner opened that the Veteran would require frequent breaks to rest and would need a job that does not require manual labor. Prior to October 24, 2018 The Board acknowledges the Veteran retired, and that at times examiners have opined his disabilities would have no impact on his ability to work. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. Though the Veteran has experience in a sedentary occupation in human resources, he last worked in 2011. His psychiatric symptoms would interfere with any employment be it sedentary or physical. As is stated above, he has motivation issues which would interfere with his ability to work be it from home or in an office setting. The May 2019 vocational assessment is conclusive in its assessment of the Veteran’s limitations due to his PTSD, back, shoulders, and sleep apnea, with the examiner ultimately finding him to be unable to secure or perform any type of substantial gainful occupation within the general labor market since September 2011. The Veteran has consistently reported his service-connected conditions have a significant impact on his ability to secure employment. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits for the period prior to October 24, 2018, (with the exception of the period of temporary 100 percent from August 17, 2016 to October 1, 2017), are met. The period of exception from August 17, 2016 to October 1, 2017 is explained in further detail below. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). Periods of total combined schedular evaluation of 100 percent The Veteran is in receipt of a temporary 100 percent evaluation from August 17, 2016, to October 1, 2017. The Veteran is in receipt of a total combined evaluation of 100 percent from October 24, 2018. The Board finds that neither the Veteran’s allegations, nor the evidence of record reflects that the Veteran is entitled to an award of a TDIU for the period August 17, 2016 to October 1, 2017, or on and after October 24, 2018. Receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 293-94. Although no additional disability compensation may be paid when a total schedular disability is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (“SMC”). The Bradley case, however, is distinguishable from the instant case. In Bradley, the 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. Here, to also award a separate TDIU rating in addition to the combined schedular 100 percent rating for the period August 17, 2016 to October 1, 2017 or on and after October 24, 2018, based on the Veteran’s combined service-connected disabilities would result in duplicate counting of the disabilities. See VAOPGCPREC 66-91 (Aug. 15, 1991) (several separately ratable disabilities cannot be combined to achieve a single total rating in order to qualify for SMC); See also Bradley, 22 Vet. App. at 293-94 (holding that multiple disabilities arising from a single incident that establish entitlement to a schedular TDIU under 38 C.F.R. § 4.16(a) may not be considered as one disability that satisfies that requirement of a service-connected disability rated as total). Therefore, the matter of entitlement to a TDIU rating from August 17, 2016 to October 1, 2017 or on and after October 24, 2018, is rendered moot. Although the Veteran is in receipt of a temporary total evaluation of 100 percent from August 17, 2016 to October 1 2017, on account of his left shoulder replacement, it remains that the Veteran was unemployable during that period on account of the combined effect of his disabilities, namely his psychiatric condition, hearing loss, and shoulder and back disabilities. This conclusion is supported by the May 2019 vocational assessment findings as well as the Veteran’s February and July 2019 statements attesting to the cause of his unemployability (anxiety, OSA, and joint disabilities). As such, a TDIU is not warranted for the period he was assigned a temporary total evaluation or since he was assigned a total schedular rating from October 24, 2018. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.