Citation Nr: 21013294 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-41 245A DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 26, 2015, is denied. FINDINGS OF FACT 1. The evidence of record is not sufficient to show that the Veteran was unable to secure or follow a substantially gainful employment as a result of service-connected disabilities prior to February 26, 2015. 2. Effective February 26, 2015, the Veteran has a 100 percent combined schedular rating and, therefore, his TDIU claim is rendered moot. CONCLUSION OF LAW Prior to February 26, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1976 to December 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA). In October 2019, the Board remanded the case for additional development and it now returns for appellate review. By way of background, as stated in the October 2019 Board remand, the matter of a TDIU was raised by the record as part of the Veteran’s claim for an increased compensation. In this regard, the Veteran filed a claim for an increased rating for his left ankle disability on January 9, 2015. The Board also noted that prior to the Board’s decision, the Veteran was only service connected for a left ankle disability rated as 20 percent disabling. However, the Board granted service connection for several other disabilities. The Board further noted that the May 2015 mental health examiner opined the Veteran’s mental health disability and left ankle sprain prevented him from maintaining substantially gainful employment. The March 2016 examiner noted the Veteran’s headaches led to the Veteran missing several days of work and taking unscheduled breaks. Thus, the Board will consider the TDIU issue prior to February 26, 2015. Effective February 26, 2015, the Veteran is in receipt of a combined 100 percent schedular rating. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). In this case, however, the Veteran does not have a single disability that is 100 percent rated, nor, does he allege that any single disability rendered him unable to work. Rather, he contends that the combined effect of his service-connected disabilities renders him unemployable and, therefore, under the facts of this case, his 100 percent schedular combined disability rating, from February 26, 2015, does render his TDIU claim moot, effective from that period. Thus, the issue has been appropriately recharacterized above. The Board further observes that, following the issuance of the most recent supplemental statement of the case in August 2020, additional evidence has been associated with the record. However, as such evidence is irrelevant or duplicative to the issue on appeal, there is no prejudice to the Veteran in the proceeding with a decision at the present time. Entitlement to a TDIU prior to February 26, 2015. As noted in the Introduction, the Board will consider the Veteran’s TDIU claim as part and parcel of his January 9, 2015, claim seeking increased ratings for a left ankle disability. As discussed above, as of February 26, 2015, the Veteran is already in receipt of a 100 percent schedular rating and the Board finds thereafter his TDIU claim is rendered moot. As noted in the introduction, while a 100 percent schedular rating does not necessarily render a TDIU claim moot, the Board finds the Veteran’s 100 percent combined disability rating in this case renders his TDIU claim moot because the Veteran is not alleging his TDIU is due solely to one service-connected disability. Rather he is contending that the combined effects of his acquired psychiatric disorder and left ankle disorder renders him unemployable. The Veteran also does not have a single disability that is 100 percent rated and, therefore, his combined 100 percent schedular rating, effective February 26, 2015, renders his TDIU claim moot as of that date. See Bradley, 22 Vet. App. at 293-94. Under the applicable criteria, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). Here, the Veteran is service connected for an acquired disorder, evaluated as 70 percent disabling, effective January 14, 2014; sleep apnea, evaluated as 50 percent disabling, effective February 26, 2015; headaches, evaluated as 50 percent disabling, effective February 26, 2015; left ankle strain, evaluated as 10 percent disabling from October 24, 2007 to September 15, 2009 and 20 percent thereafter; and tinnitus, evaluated as 10 percent disabling, effective February 26, 2015. As the Veteran’s combined rating from January 9, 2015 was 80 percent, the Veteran met the threshold criteria for a TDIU. Therefore, the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when 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 (1991). 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Although the Veteran satisfies the percentage requirements set forth in section 4.16(a) for consideration of TDIU from January 9, 2015, the Board finds that the evidence does not show that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Board acknowledges a May 2015 private opinion from Dr. H.H.G. notes that the Veteran retired in 2012 and began receiving SSDI for his mental health and physical difficulties. Dr. H.H.G. concluded that the Veteran suffered from unspecified depressive disorder and unspecified neurocognitive disorder, which more likely than not began in his military service. She further stated that such conditions were aggravated by his service-connected left ankle strain and his conditions prevented him from maintaining substantially gainful employment. However, while evidence of record demonstrates limitations caused by the Veteran’s service-connected disabilities, the Veteran has failed to provide the information necessary to support a finding of TDIU. In this regard, the RO was directed to develop the issue of entitlement to a TDIU in the Board’s October 2019 remand. In a July 2020 correspondence, VA requested that the Veteran complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability and a VA Form 21-4192, Request for Employment Information. To this date, the Veteran has failed to submit a both forms. The Veteran has failed to provide the necessary information to support a finding of TDIU, such as his work history, the type of education and training he possesses, and whether he continued to be unemployed. Although VA has a duty to assist in the development of a claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim. “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood, 1 Vet. App. at 195. In sum, although the Board acknowledges the limitations of the Veteran’s service-connected disabilities, he has failed to provide the information necessary to support a finding of TDIU prior to February 26, 2015. Therefore, after considering all the evidence of record, the Board finds that, prior to February 26, 2015, the Veteran’s service-connected disabilities did not produce unemployability, nor did they prevent him from obtaining and maintaining substantially gainful employment during the period on appeal. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.