Citation Nr: 21012092 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-35 111 DATE: March 3, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected anxiety disorder with depressive disorder is rated as 100 percent disabling for the entire period on appeal, and the evidence of record does not indicate the Veteran’s remaining service-connected disabilities (hearing loss and Peyronie’s disease) render him unemployable by themselves. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and November 2020, the Board remanded the issue on appeal for further development as it was inextricably intertwined with the increased rating claim for service-connected anxiety disorder. The Board notes the claim for TDIU dates back to October 8, 2008, which is the date VA received the Veteran’s claim for service connection for anxiety disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In December 2020, the RO granted a 100 percent rating for service-connected anxiety disorder with depressive disorder effective October 8, 2008. This is a full grant of the benefit sought on appeal with regard to the increased rating claim for service-connected anxiety disorder as the Veteran received the maximum benefit allowed by law and regulation. After review of the record, the Board finds that the criteria for TDIU have not been met. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran’s service-connected disabilities include anxiety disorder with depressive disorder (100 percent); Peyronie’s disease (noncompensable); and bilateral hearing loss (noncompensable). The Veteran’s service-connected disabilities combine for a 100 percent disability rating, thus satisfying the threshold requirements for TDIU. See 38 C.F.R. § 4.16(a). The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). A grant of a 100 percent disability rating, however, does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound. See 38 U.S.C. § 1114(s); Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114(s)). In the instant matter, the Veteran is rated at 100 percent for anxiety disorder, which is assigned for total occupational and social impairment. See 38 C.F.R. § 4.130. In other words, the Veteran has been found to be totally disabled as a result of his service-connected anxiety disorder. During the entire period on appeal, Veteran’s other service-connected disabilities had noncompensable ratings and there is no evidence of record indicating that any of the Veteran’s service-connected disabilities render him unemployable. Specifically, the evidence indicates that the Veteran is terrified of airplanes and has not flown since 1998; has occasional debilitating panic attacks that cause emergency room visits; has partial hearing loss that requires the use of hearing aids; and is the sole caregiver for his developmentally disabled daughter, age 47. See November 2020, VA examination; August 2020, Correspondence; Private treatment records dated August 2015 and November 2015; December 2013, VA Form 21-4138. To the extent that Bradley could enable TDIU based on a combination of the remaining service-connected disabilities, here such disabilities do not rise to the requisite percentage thresholds. Thus, a TDIU based solely on the Veteran’s hearing loss and Peyronie’s disease is not warranted for the entire period on appeal. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.