Citation Nr: 21012116 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-06 156 DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from August 20, 2018, is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU), from April 17, 2018, to August 20, 2018, is granted. FINDINGS OF FACT 1. The Veteran has been awarded a 100 percent schedular evaluation for his major depressive disorder; therefore, the claim for TDIU from August 20, 2018 is moot. 2. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation from April 17, 2018, to August 20, 2018. CONCLUSIONS OF LAW 1. The issue of entitlement to TDIU is moot from August 20, 2018. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met from April 17, 2018, to August 20, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded by the Board in a November 2018 decision for additional development and has now returned for further appellate review. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) from August 20, 2018, The Veteran was granted a 100 percent evaluation for service-connected bilateral hearing loss effective August 20, 2018, in a December 2019 rating decision. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means 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). As the Veteran is presently rated at 100 percent for his service-connected bilateral hearing loss from August 20, 2018, the issue of entitlement to a TDIU is now moot from that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), from April 17, 2018, to August 20, 2018, VA received a claim for entitlement to a TDIU from the Veteran on April 17, 2018. 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. 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). 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 one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For purposes of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran’s ability to obtain and maintain employment consistent with his or her education and experience. As an initial matter, the Board observes that the Veteran meets the schedular criteria for TDIU. From January 2018 to August 2018, he has had a combined rating of 80 percent, with service connection for bilateral hearing loss at 80 percent disabling, sinusitis at 30 percent disabling, and tinnitus at 10 percent disabling. The Veteran asserts that he cannot work due to his service-connected hearing loss. In an April 2018 VA Form 21-8940, the Veteran listed his most recent employment as a sheriff in September 2009. The Veteran has a high school education and denied any additional education or training either before or after becoming disabled. In an August 2018 VA examination, the examiner noted that the Veteran “will be limited in his ability to function in occupational environments that require normal hearing thresholds.” Subsequently, in an October 2019 VA examination regarding the severity of the Veteran’s service-connected sinusitis, the examiner opined that the sinusitis “may cause intermittent interference with the ability to perform both physical and sedentary job[s] due to headache, sinus pain and nasal congestion. The veteran must avoid exposure to cold weather, dust, fumes and other air pollutants.” The Board notes that the Veteran’s service-connected disabilities include severe hearing loss and moderate sinusitis. As noted above, the Veteran’s service-connected disabilities meet the schedular requirement for TDIU. Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities have prevented him from obtaining and maintaining substantial employment, and therefore, a TDIU is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.