Citation Nr: 21015627 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-27 644 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from September 22, 2015 to January 16, 2019, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), since January 17, 2019, is denied. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, from September 22, 2015 to January 16, 2019, the evidence shows that her service-connected disabilities precluded her from substantial gainful employment. 2. Without consideration of the Veteran’s service-connected psychiatric disability, since January 17, 2019, the combined disability rating for the remaining service-connected disabilities is 10 percent; the remaining Veteran’s service-connected disabilities do not render the Veteran unemployable. CONCLUSIONS OF LAW 1. From September 22, 2015 to January 16, 2019, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. Since January 16, 2019, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1999 to May 1999. The Veteran was afforded a hearing before the undersigned in January 2021. A copy of the transcript is of record. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran asserts that her service-connected psychiatric disabilities prevent her from maintaining employment. Specifically, at her January 2021 hearing she testified that she had been unable to secure and maintain a job since December 2010 because of her service-connected bipolar disorder symptoms. She also testified that because she could not maintain a full time job she worked various part time and contract jobs to make additional money. VA will grant a total rating for compensation purposes based on individual unemployability (TDIU) when the evidence shows that by reason of service-connected disability, or combination of disabilities, the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; see Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (holding that TDIU is assigned based on the collective impact of service-connected disabilities). Such a rating will be assigned when the veteran meets the above criteria and (1) has a single service-connected disability rated 60 percent or more OR, (2) if there are two or more service-connected disabilities, provided at least one disability 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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, 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 (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 Veteran has been granted a schedular rating of 100 percent for her service-connected bipolar disorder effective January 17, 2019. 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 because 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). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his 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 the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Alternatively, SMC may be warranted where a TDIU is warranted for a single service-connected disability, and the Veteran has a disability or disabilities that are independently ratable as 60 percent or more and which do not form the basis for the TDIU. Such a scenario is not present here. Here, in determining whether the Veteran is entitled to a TDIU since January 17, 2019, her psychiatric disability symptoms may not be considered, as to do so would impermissibly count the disorder twice: once for the 100 percent rating assigned, and again for determining another 100 percent rating via a TDIU. Consequently, only her other service-connected disabilities may be considered in determining entitlement to a TDIU. During the appeal period, the Veteran’s only remaining service-connected disabilities, a left ankle condition at 10 percent and metatarsalgia fracture at 10 percent, were not rated at 60 percent or more and no evidence of record reflects that her service-connected disabilities have prevented her from obtaining or sustaining any kind of employment during the appeal period. The evidence is clear that only the Veteran’s service-connected psychiatric disability impacts the Veteran’s employability. In summary, the preponderance of evidence in the record does not support a finding that the Veteran’s remaining service-connected disabilities alone prevented her from obtaining or sustaining any kind of employment, and referral to the Director of the Compensation Service for extraschedular consideration is not required under 38 C.F.R. § 4.16 (b). The Veteran’s remaining service-connected disabilities are not rated at 60 percent or more (combined or individually) and do not impact her employability. Therefore, the issue of entitlement to a TDIU since January 17, 2019 must be denied, and that period of the claim will not be further discussed. That leaves the claim period of September 22, 2015 to January 16, 2019 for consideration. Initially, the Board notes that the Veteran has met the schedular criteria for a TDIU for the entirety of the appeal period. The Veteran submitted an application for a TDIU in conjunction with an increased rating claim for her psychiatric disability on September 22, 2015. From September 22, 2015 to January 16, 2019, Veteran has been service-connected for bipolar disorder at 70 percent effective September 22, 2015; left ankle condition at 10 percent; and metatarsalgia fracture at 10 percent. Her combined disability percentage from September 22, 2015 to January 16, 2019 was 70 percent. Thus, the only remaining question is whether the Veteran’s service-connected disabilities rendered her unable to secure or follow substantially gainful employment for that time period. The Veteran’s application for a TDIU reflects the Veteran has a high school education and last worked full time at a grocery store from October 2014 to August 2015. Previously she worked in accounting from April 2009 to December 2010. Additionally, several medical opinions of record address the Veteran’s ability to work. A November 2011 VA examination report found that the Veteran’s bipolar disorder symptoms caused difficulty adapting to a worklike setting and maintaining a work relationship, though the examiner was unable to provide an opinion as to the impact of the Veteran’s bipolar disorder on her ability to work. A January 2019 VA examination report similarly found the Veteran’s psychiatric disability caused difficulty adapting to a worklike setting and maintaining a work relationship with no change in the impact of the Veteran’s psychiatric disability symptoms on her employability from the previous VA examination. After a thorough review and resolving all doubt in favor of the Veteran, the Board finds that the evidence supports the assignment of TDIU from September 22, 2015 to January 16, 2019. While the Veteran has had various part-time jobs throughout the appeal period, these jobs are marginal and do not preclude an award of a TDIU. All VA examination reports of record for the appeal period note that the Veteran’s service-connected psychiatric disability symptoms interfered with her ability to work from September 22, 2015 to January 16, 2019. The Board finds the VA medical opinions to be competent and credible evidence, and the opinions are supported by the Veteran’s lay statements and VA treatment records. (Continued on the next page)   Accordingly, in light of the favorable VA medical opinions, reasonable doubt is resolved in favor of the Veteran at this time. The Board finds that the Veteran’s service-connected disabilities preclude her from securing and maintaining substantially gainful employment during the applicable time period, and entitlement to a TDIU from September 22, 2015 to January 16, 2019 is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.