Citation Nr: 21014624 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-45 897A DATE: March 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from July 16, 2013 to June 17, 2019; the claim is deemed moot from June 18, 2019 forward. FINDINGS OF FACT 1. From July 16, 2013 to June 17, 2019, the Veteran’s combined disability rating was 90 percent, and the evidence shows that the Veteran’s service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. 2. From June 18, 2019 forward, the claim for a TDIU is moot. CONCLUSION OF LAW The criteria for a TDIU have been met from July 16, 2013 to June 17, 2019; the claim is deemed moot from June 18, 2019 forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1977 to September 1983 and from November 1986 to January 1996. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision, which granted service connection for bilateral lower extremity peripheral neuropathy, chronic kidney disease, and mild nonproliferative diabetic retinopathy. The Veteran appealed the rating decision and sought an initial increased rating for the disabilities, which the Board addressed in an April 15, 2020, decision. The Board notes that entitlement to a TDIU was raised as part and parcel of the Veteran’s disagreement with the initial ratings assigned in the September 2017 rating decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue was not addressed in the April 15th decision. On April 18, 2020, the Board issued a decision that remanded the Veteran’s claim for a TDIU. However, in February 2021, the Board vacated that portion of the April 18th decision because the TDIU should have been addressed in the April 15th decision. Accordingly, the TDIU claim is now being addressed under the correct docket number, which was also associated with the increased ratings claims. Entitlement to a TDIU As discussed above, entitlement to a TDIU was raised as part and parcel of the Veteran’s disagreement with the initial ratings assigned for his bilateral lower extremity peripheral neuropathy and chronic kidney disease, for which service connection has been established, effective July 16, 2013. Id. at 453–54. Thus, the period for consideration on this appeal for a TDIU is from July 16, 2013. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 service-connected disabilities, provided at least one 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 C.F.R. §§ 3.340, 3.341, 4.16(a). In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the veteran’s total rating is based on a combination of his service-connected disabilities, (which by definition would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the veteran eligible for SMC. If, however he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for SMC. Here, the issue of TDIU is moot as of June 18, 2019, based on the grant of statutory housebound SMC, pursuant to 38 U.S.C. § 1114(s). Accordingly, as the Veteran has already been awarded SMC on this basis and would have no need to establish a TDIU rating in order to qualify for statutory housebound SMC, the holding of Bradley is not applicable and any TDIU claim is moot as of June 18, 2019. The Board will now turn to the issue of entitlement to a TDIU prior to June 18, 2019. At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU for the appellate period. Thus, the remaining inquiry is whether the Veteran’s service-connected disabilities precluded employment. Based on the evidence of record, and in resolving all doubt in the Veteran’s favor, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities such that a TDIU is warranted. Specifically, the record reveals that the Veteran worked as a city laborer from May 2005 to May 29, 2013. On his May 2014 Application for Increased Compensation Based on Individual Unemployability, VA Form 21-8940, the Veteran reported that he last worked full-time on May 29, 2013. He also indicated that he obtained a commercial driver’s license (CDL) certification in 2004. The Veteran’s Social Security Administration (SSA) records reveal that his employment history includes work as a shelf stocker, baggage screener, and laborer. The record indicates that his last employment required him to drive a CDL truck, work with concrete, and mow grass. In July 2013, the Veteran submitted a statement from his private physician, Dr. J.T., noting a history of recurrent syncope likely due to poorly controlled diabetes and acute dehydration. Dr. J.T. stated that while the Veteran’s work requires him to drive large vehicles to work sites and complete heavy labor outdoors, his conditions no longer make him a well-qualified candidate for his current position. In a May 2014 correspondence, Dr. J.T. indicated that the Veteran’s CDL requires him to have a DOT certificate. He stated that because the Veteran’s insulin dependent diabetes disqualifies him from obtaining a DOT certificate, the Veteran is no longer employable in any field that requires him to maintain a DOT certificate of fitness to drive. In June 2015, the Veteran’s private physician, Dr. U.T.S., opined that the Veteran was disabled due to his diabetes mellitus type II, chronic kidney disease, multiple cranial neuropathies of unknown etiology, and migraine headaches. A June 2017 VA examiner opined that the Veteran’s service-connected disabilities do not preclude light physical or sedentary employment. She indicated that employment duties requiring heavy, vigorous exercise or strenuous activities should be avoided due to potential for hypoglycemia. The Veteran submitted a private medical opinion from Dr. H.S., dated August 2019. Dr. H.S. opined that, based on a review of the claims file, it is as likely as not that the combination of pain and limitation caused by the Veteran’s service-connected impairments prevent him from being able to work. He indicated that the Veteran last worked from 2004 to 2013 doing construction, driving CDL trucks with trailers, building sidewalks, and doing road maintenance. He stated that the Veteran was advised to stop working due to the combination of limitations from his diabetes, chronic kidney disease, migraines, and neuropathy. Dr. H.S. noted that the Veteran gets headaches about three times a week, requiring him to lay down in a dark and quiet room for hours or all day. He also noted that the Veteran’s bilateral lower extremity peripheral neuropathy causes him to be only able to drive an hour or two without stopping, stand for 45 minutes without needing assistance, and walk for 40 minutes. He further indicated that the Veteran is unable to lift or carry more than 10 pounds due to his neuropathy. Dr. H.S. also stated that the Veteran is in constant pain, causing him to have difficulty concentrating and staying focused. Thus, he concluded that considering the Veteran’s mobility, severe pain, and physical limitations, the Veteran has been unable to maintain substantial gainful employment as a result of his service-connected disability since July 16, 2013. Accordingly, the Board finds that a TDIU rating is warranted, as the evidence weighs in favor of a finding that the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. The Veteran’s physical limitations due to his service-connected disabilities prevent him from successfully following gainful work consistent with his employment history is physically demanding jobs. Additionally, the record indicates that the Veteran’s service-connected diabetes mellitus type II prevents him from obtaining a DOT certificate, which is required for a CDL. Moreover, the evidence does not show that his experience is easily transferable to other types of employment, such as in an office or an office-type setting. In sum, considering the severity of the Veteran’s service-connected disabilities, as well as his employment and education history, and in affording him the benefit of the doubt, the Board finds that entitlement a TDIU is warranted, from July 16, 2013 to June 17, 2019. See 38 U.S.C. § 5107(b). AMANDA E. H. GIBSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.