Citation Nr: 21021392 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-14 578A DATE: April 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 14, 2014, is denied. Entitlement to a TDIU from May 14, 2014, having been rendered moot, is dismissed. FINDINGS OF FACT 1. Prior to May 14, 2014 the preponderance of the evidence does not show that the Veteran’s service-connected disabilities precluded her from securing or following a substantially gainful occupation. 2. From May 14, 2014, the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC), which renders the issue of entitlement to a TDIU moot for this period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU for the period prior to May 14, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19 (2017). 2. The claim for a TDIU for the period from May 14, 2014, is dismissed as moot. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2007 to August 2009. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, after a review of the record, the Board denied the Veteran’s claim for a rating in excess of 60 percent for an eating disorder, outside periods of hospitalization, and denied a rating in excess of 30 percent from January 27, 2011 to August 2011, and from November 1, 2011 to October 29, 2013. In May 2014, the Veteran’s VA treating physician indicated that the Veteran was unable to function in college, workplace, or in her role as a single mother of a small child. As such, the Board inferred a claim for a TDIU based on the Veteran’s service-connected eating disorder. When evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, a claim for TDIU will be considered as part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In its February 2019 decision, the Board remanded the issue of TDIU for further development. As the actions specified in the prior remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to a TDIU The Veteran's claim for a TDIU was raised during the pendency of her appeal for an increased rating for an eating disorder, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that her service-connected disabilities prevent her from securing and following a substantially gainful occupation. 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. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to a service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a total disability rating for the period prior to May 14, 2014, based on individual unemployability due to service-connected disabilities As an initial matter, from August 26, 2011 to October 31, 2011, the Veteran was in receipt of a temporary 100 percent rating for convalescence for her service-connected eating disorder. The Board notes that in Herlihy v. Principi, 15 Vet. App. 33, 35 (2001), the Court of Appeals for Veterans Claims (the Court) held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating. While VA has a duty to maximize a claimant's benefits, the Veteran is already in receipt of the maximum benefits available for this period. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App.280, 294 (2008). Therefore, in the current appeal, the claim for TDIU is moot from the above period of convalescence, and the relevant appeal period is from November 1, 2011 to May 13, 2014. Entitlement to special monthly compensation (SMC) has been found to be an inferable issue when a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). However, during the period from August 26, 2011 to October 31, 2011, the Veteran did not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. § 3.350(i). As such, the Veteran is not entitled to SMC for this period. Prior to May 14, 2014, the Veteran was service-connected for depression (also claimed as PTSD) at 30 percent disabling, and for an eating disorder at 30 percent disabling. The Veteran’s combined disability rating did not meet the schedular criteria for a TDIU until October 30, 2013. Extraschedular referral for the period from November 1, 2011 to October 29, 2013 is not warranted Having determined that the Veteran is not eligible for assignment of a schedular TDIU for the period from November 1, 2011 to October 29, 2013, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of her service-connected disabilities, such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The evidence of record indicates that as of August 2011, the Veteran was employed as a waitress since 2009, with her hours varying between part-time and full-time. See August 20, 2011 VA Treatment Note. Based on the lack of evidence to establish that the Veteran was unemployable during this period, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered her unable to secure and follow a substantially gainful occupation during the period from November 1, 2011 to October 29, 2013. The Board also finds it significant that the Veteran did not respond to two requests from VA provide further information needed to substantiate her claim for a TDIU. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991). There is nothing in the Veteran's medical records to suggest that her service-connected depression or eating disorder disabilities cause such an exceptional or unusual disability picture so as to place her in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). Entitlement to a TDIU from October 30, 2013 to May 13, 2014 The Board notes that during this period, the Veteran’s service-connected disabilities (depression rated as 30 percent disabling, eating disorder rated as 60 percent disabling) combine to a 70 percent rating. As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU based on a combined rating of 70 percent with at least one disability (those resulting from a common etiology) rated at least 40 percent. The evidence of record indicates that during the period from October 30, 2013 to May 13, 2014, that the Veteran was employed full-time as a certified nursing assistant. See October 30, 2013 private treatment note. A May 14, 2014 private treatment note indicates that the Veteran was working full-time as a team coordinator for a contracting company. See May 14, 2014 C.F.C. Admitting Mental Health Assessment. A May 5, 2014 correspondence from one of the Veteran’s VA providers indicates that the Veteran has “profound difficulty managing day-to-day stressors, such as employment and motherhood” and that the Veteran would benefit from the opportunity to solely focus on motherhood and her recovery from her eating disorder. See May 2014 Statement in Support of Claim. On review of the Veteran’s VA and private treatment records for this period, the Board notes that the Veteran's treating clinicians do not make any suggestion that the Veteran is unemployable at any time from October 30, 2013 to May 13, 2014. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered her unable to secure and follow a substantially gainful occupation during the period from October 30, 2013 to May 13, 2014. In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause her some level of functional impairment. However, there is no evidence to support a finding that these functional impairments otherwise render her unable to secure or follow a substantially gainful occupation. Finally, as discussed above, the Veteran has not provided the information or VA forms requested by VA to adjudicate her claim of entitlement to a TDIU rating, specifically a VA Form 21-8940. See Wood, 1 Vet. App. 190 (1991). Given the evidence that the Board does have, it appears that the Veteran's service-connected disabilities do not limit her such that she is unable to obtain or retain substantially gainful employment. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for a TDIU for the period prior to May 14, 2014. 38 U.S.C. §5107(b); Gilbert v. Derwinski,1 Vet. App. 49 (1990); 38 C.F.R. §3.102. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 4.3. Entitlement to a total disability rating since May 14, 2014, based on individual unemployability due to service-connected disabilities From May 14, 2014, the Veteran is in receipt of 100 percent disability ratings for her service-connected depression and her service-connected eating disorder. Additionally, since May 14, 2014, the Veteran is in receipt of special monthly compensation at the (s) level. The claim of entitlement to a TDIU from May 14, 2014, has been rendered moot by the award of SMC at the housebound rate. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Board notes that the Veteran is in receipt of a 100 percent disability rating (depression) and SMC at the housebound rate from May 14, 2014. The United States Court of Appeals for Veterans Claims 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 the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to 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). In this case, the Veteran is, as of this decision, is in receipt of both a 100 percent disability rating (depression) and SMC at the housebound rate from May 14, 2014. As this reflects the maximum available benefit, the issue of entitlement to a TDIU from May 14, 2014, is moot. See Bradley, 22 Vet. App. at 293. (Continued on the next page)   Accordingly, there is no question or controversy for consideration by the Board with regard to entitlement to a TDIU for the period from May 14, 2014. As no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal of the issue for entitlement to a TDIU from May 14, 2014, and it is dismissed as moot. See 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.