Citation Nr: 21010954 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-13 266 DATE: February 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACTS 1. The Veteran has a single disability rated as 100 percent disabling for the entire appeal period. 2. The Veteran is receiving SMC under 38 U.S.C. § 1114 (s) effective January 8, 2020. 3. Prior to January 8, 2020, the Veteran does not argue, and the evidence does not show, that he is unable to secure or maintain substantially gainful employment due solely to migraines, a GI disability, or heat exhaustion. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1114(s), 1155; 38 C.F.R. §§ 3.350, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1997 to March 1999. The claim for TDIU is a derivative claim raised as part and parcel of the Veteran’s claim for an increased rating for major depressive disorder (MDD) that was adjudicated by way of a November 2020 Board of Veterans’ Appeals (Board) decision. See Rice v. Shinseki, 22 Vet. App. 447 (2011). At that time, the claim for TDIU was remanded. A videoconference hearing was held with the undersigned in September 2020 and the transcript is of record. Notably, the Veteran filed a correspondence in December 2020. The Veteran wrote “I accept the denial of unemployability and I wish to move forward with my claim as it is. I proved my case to the Appeals Court and I won. Unemployability is no longer needed.” In the same correspondence, the Veteran asked for his claim to be expedited. Because the correspondence does not explicitly and unambiguously express the Veteran’s desire to withdraw the claim for TDIU, the Board will proceed to adjudicate the claim. See 38 C.F.R. § 20.204; Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Entitlement to a TDIU due to service-connected disabilities is moot. The Veteran contends that he is entitled to TDIU because his service-connected disabilities prevent him from securing or maintaining substantially gainful employment. See February 2018 VA Form 21-8940. The Veteran’s claim for increased rating for MDD was received on August 2, 2017. This is the beginning of the period on appeal, as the TDIU is derivative of that claim. A TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran has a single disability, MDD, rated 100 percent throughout the appeal period. A TDIU is generally not available when there is a total schedular rating (100 percent), as in this case. An exception exists for the purposes of SMC under 38 U.S.C. § 1114 (s) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i). A TDIU may meet the criterion of a “single service-connected disability rated as 100 percent,” but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). VA has already granted SMC under 38 U.S.C. § 1114 (s), effective January 8, 2020. Therefore, a TDIU is not available from January 8, 2020 under Bradley. A TDIU cannot be awarded based on MDD for the purpose of 38 U.S.C. § 1114(s), because he is already assigned a 100 percent rating for that disability. The question remaining before the Board is very narrow: can a TDIU be awarded from August 2, 2017 to January 7, 2020 based on a single service-connected disability other than MDD, for the purpose of meeting the criterion of a “single service-connected disability rated as 100 percent” under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i)? From August 2, 2017 to January 7. 2020, the Veteran’s other service-connected disabilities are: GI disability (ileitis and Crohn’s disease) rated 30 percent from January 19, 2018; migraines rated 0 percent from August 7, 2018; and heat exhaustion rated 0 percent for the entire period. The Veteran has not argued, and the evidence does not show, that he is unable to secure or maintain substantially gainful employment solely due to his GI disability, migraines, or heat exhaustion. On the contrary, the evidence indicates the difficulty obtaining and maintaining substantially gainful employment is due to the combined effects of his psychiatric disability, GI disability, heat exhaustion, migraines, and sleep disability. See, e.g., hearing testimony. As a result, a TDIU cannot be assigned based on any one of these single disabilities for the purpose of SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i). Therefore, a TDIU is not warranted for the period prior to January 2020, and the claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.