Citation Nr: 21014547 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-06 986 DATE: March 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 26, 2007 is denied. FINDING OF FACT The Veteran is in receipt of a 100 percent combined schedular rating for the service-connected disabilities for the entire appeal period from December 26, 2007. CONCLUSION OF LAW The issue of a TDIU has been rendered moot by a 100 percent combined schedular disability rating from December 26, 2007. 38 U.S.C. §§ 1155, 7104, 7105; 38 C.F.R. § 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1987 to March 1990. This matter was previously before the Board in October 2020. The Board found that, in a June 2013 statement in support of claim, the Veteran raised a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim attached to a pending appeal for increased rating for the lumbar spondylosis with degenerative joint disease. See June 2013 Statement in Support of Claim (The Veteran requested that VA expedite the appeal because the lumbar disorder has rendered him unable to work). The Board noted that, while the Veteran claimed he was unable to maintain substantially gainful employment in June 2013, the December 2019 VA examination indicates the Veteran was then employed as a customs inspector for U.S. Customs and Border Protection. The Board remanded in order to obtain an application for increased compensation based on unemployability (VA Form 21-8940). In November 2020, VA informed the Veteran of the October 2020 Board remand and provided the Veteran with a VA Form 21-8940. See November 2020 Subsequent Development Letter. In the letter, VA notified the Veteran that, if he believes that he qualifies for TDIU, he should complete, sign, and return the VA Form 21-8940. VA also informed the Veteran that, if he does not respond, a decision will be rendered after 30 days. To date, the Veteran has not provided VA the requested completed VA Form 21-8940 to help substantiate that he is not substantially gainfully employed or to help show how the service-connected disabilities affect his ability to obtain and maintain employment. In a December 2020 supplemental statement of the case, VA denied a TDIU. In January 2021, VA informed the Veteran that the appeal was being returned to the Board for adjudication. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Moreover, as this appeal is being denied as a matter of law, there are no further duties to notify or assist. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU is Denied as Moot. The Board notes that, while the Veteran did not complete and submit an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran asserts that he was rendered unable to maintain substantially gainful employment as a customs officer due to the service-connected lumbar disability. The Veteran makes this general assertion in a June 24, 2013 statement in support of claim as part of the underlying appeal for an increased rating for higher rating for the lumbar disability. The underlying claim for increased rating for the lumbar disability was filed on December 26, 2007. In the June 2013 filing, noticeably, the Veteran does not provide a specific date that he became too disabled to maintain substantially gainful employment as a customs inspector, provided nothing of substance to support the vague and unsupported statement, and did not specify any one particular service-connected disability as the sole cause of unemployability. Even after invitation to do so, the Veteran has not since proffered any explanation as to how the service-connected disabilities rendered him unable to maintain substantially gainful employment as a customs inspector. As such, the Board construes the claim for TDIU as a claimed based on all the service-connected disabilities. See 38 C.F.R. § 4.16(a). The Veteran is service connected for posttraumatic stress disorder (PTSD) rated at 70 percent from December 26, 2007, migraine headaches rated at 50 percent from October 31, 2003, lumbar spondylosis with degenerative joint disease rated at 60 percent from December 26, 2007, and decreased to 40 percent from May 9, 2016, antral gastritis rated at 30 percent from March 19, 2010, right knee patellofemoral pain syndrome rated at 10 percent from March 16, 1990, left knee patellofemoral pain syndrome rated at 10 percent from March 16, 1990, chronic prostatitis rated at 0 percent from March 16, 1990 increased to 10 percent from August 30, 2019, hemorrhoids rated at 0 percent from March 16, 1990, right knee scar rated at 0 percent from August 30, 2019, and a left knee scar rated at 0 percent from August 30, 2019. The threshold combined rating percentage requirements for the consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the TDIU claim period on appeal. After reviewing the evidence of record, the Board finds that the Veteran is in receipt of a 100 percent combined schedular rating for the service-connected disabilities for the entire TDIU claim period on appeal from December 26, 2007. The Board specifically finds that the exceptions to the rule that a 100 percent schedular disability rating moots a TDIU claim based on “less than total” rating do not apply in this case, as discussed below. See 38 C.F.R. § 4.16 (a) (providing TDIU “where the schedular rating is less than total”); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). This case is distinguishable from both Bradley and Buie exceptions to the rule that a 100 percent combined schedular disability rating moots a TDIU. Under the unique facts of Bradley, SMC was available where a veteran had been granted TDIU based on a “less than total” 70 percent rating for only one disability and had subsequently obtained service connection for multiple orthopedic disabilities that combined to 60 percent. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley at 293. This case is distinguishable from Bradley because, in this case, the Veteran is not in receipt of a less than 100 percent schedular disability rating for any one service-connected disability upon which a TDIU is granted. Rather, the 100 percent schedular disability rating assigned from December 26, 2007 is based on the combined ratings of multiple service-connected disabilities. Concerning both Bradley and Buie, in this case, the Veteran is currently service connected for multiple disabilities and has previously contended that the combination of these disabilities renders him unemployable. To award a TDIU rating for the period since December 26, 2007 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. The Veteran has not contended that a TDIU is warranted based only on one particular service-connected disability; rather, he has claimed TDIU generally, mentioned time lost from work and impairments from multiple disabilities. Now, after having claimed a TDIU based on multiple service-connected disabilities, the Veteran may not assert a new claim for TDIU based only on one disability. See Buie. As neither a Bradley nor Buie exception to the general rule that a TDIU is to be based on all service-connected disabilities is applicable in this case (see 38 C.F.R. § 4.16(a), providing that a TDIU rating is only available where the schedular rating is “less than total”) , the TDIU has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from December 26, 2007, even before the rating period, so covers the entire rating period on appeal. For these reasons, the TDIU appeal is without legal merit, having been rendered moot by the 100 percent combined schedular disability rating, and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.