Citation Nr: 21022284 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-31 051 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2013 is denied. Entitlement to a TDIU from June 12, 2013 onward is dismissed as moot. FINDINGS OF FACT 1. For the period prior to June 12, 2013, the Veteran’s service-connected disabilities did not meet the schedular rating requirements for a TDIU and did not render him unemployable to warrant consideration of entitlement to this benefit alternatively on an extra-schedular basis. 2. Effectively since June 12, 2013, he has had a 100 percent schedular rating for his chronic obstructive pulmonary disease (COPD), emphysema and recurrent pneumonia, and effectively since October 26, 2020 he additionally has been receiving special monthly compensation (SMC) on account of this service-connected disability and the 100 percent rating for it and additional service-connected disability – namely, his unspecified depressive disorder with anxious distress, which is independently ratable at 60 percent or more (the rating for this other service-connected disability is 70 percent).   CONCLUSIONS OF LAW 1. Prior to June 12, 2013, the criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 2. The claim for a TDIU from June 12, 2013 onward is dismissed since moot. 38 U.S.C. §§ 1114(d), 7105(d)(5); 38 C.F.R. §§ 3.350(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to May 1969. This appeal to the Board of Veterans’ Appeals (Board) originated from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An April 2020 Board remand assumed jurisdiction over this TDIU claim since derivative of the claim the Veteran had appealed to the Board concerning the initial rating assigned for his service-connected unspecified depressive disorder with anxious distress. See Rice v. Shinseki, 22 Vet. App, 447 (2009). The Board again remanded this derivative TDIU claim in February 2021 because there also were service connection claims pending that needed to be developed and decided first. On the same day as that remand, the Appeals Resource Center (ARC) issued a decision, in part, granting those additional service connection claims – including for the Veteran’s COPD, emphysema and recurrent pneumonia, which was rated as 100-percent disabling retroactively effective from June 12, 2013. The ARC also granted him SMC based on the housebound (HB) criteria being met as of October 26, 2020. A February 2021 Supplemental Statement of the Case (SSOC) continued to deny this TDIU claim for the period prior to June 12, 2013 when the Veteran did not have a 100 percent schedular rating for his COPD, emphysema and recurrent pneumonia. TDIU The Veteran contends that he is entitled to a TDIU because his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. VA will grant a TDIU when the evidence shows the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a).   Even if a veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of the Compensation and Pension (C&P) Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). "Substantially gainful employment" is employment" that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough since a disability rating, itself, is recognition that there is impairment of earning capacity. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 1. Entitlement to a TDIU prior to June 12, 2013 For this period prior to June 12, 2013, the Veteran did not have sufficient ratings for his service-connected disabilities to meet the schedular requirements for a TDIU. As of February 22, 2011, he had a 30 percent rating for his unspecified depressive disorder with anxious distress, and as of March 28, 2011 he had a 0 percent (noncompensable) rating for his dermatophytosis, a 10 percent rating for his tinnitus, and a 0 percent rating for his bilateral hearing loss. He therefore had an overall combined rating of 30 percent for these service-connected disabilities as of February 22, 2011 and an overall 40 percent rating as of March 28, 2011. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). The Veteran’s service-connected disabilities consequently did not meet the schedular criteria for a TDIU at any point prior to June 12, 2013. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   The evidence of record also does not show that the Veteran’s service-connected disabilities during this earlier period precluded him from securing or maintaining substantially gainful employment to, in turn, warrant referring this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of § 4.16(b). On March 14, 2019, so during the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means" an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," whereas the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities An August 2010 VA treatment record shows the Veteran reported that he had retired in May 2009, so the prior year. A June 2011 VA examination for skin conditions shows the Veteran complained of dry scaly skin with cracking on his feet that was treated with over-the-counter medication. A June 2011 private audiology record shows the audiologist reported that the Veteran’s hearing loss was only mild and did not comment on his tinnitus. The report of an April 2012 VA psychiatric examination shows the Veteran reported “a long work history of brief jobs where he would get mad and quit.” He further reported that his most recent job was as a self-employed carpenter from 2006 to 2009 and that he “retired [because] of medical issues (COPD).”   The examiner noted that the Veteran had disturbances of motivation and mood, difficult in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including a work like setting. As such, these impairments were considered in awarding him the initial 30 percent rating for his unspecified depressive disorder with anxious distress. See 38 C.F.R. § 4.130, Diagnostic Code 9435. Moreover, to the extent the Veteran’s COPD impacted his employability in causing him to retire, it must be borne in mind that this did not become a service-connected disability until June 12, 2013. So, even though it was rated as 100-percent (i.e., totally) disabling as of that date, it cannot be considered in the TDIU determination prior to that date – even if it forced him to retire in 2009. In short, the evidence of record does not show that the Veteran's service-connected disabilities, alone or in combination, precluded his employability and entitled him to a TDIU prior to June 12, 2013. Thus, the Board need not refer this claim to the Director of the Compensation Service for extra-schedular consideration for this initial period at issue prior to June 12, 2013. 2. Entitlement to a TDIU from June 12, 2013 onward Effectively since June 12, 2013, the Veteran has had a 100 percent combined rating for his service-connected disabilities, which includes a 100 percent schedular rating for his COPD specifically. Thus, his service-connected disabilities meet the schedular criteria for a TDIU as of that onward. See 38 C.F.R. § 4.16(a). The Board's jurisdiction, however, is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101.   The Court has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. See 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 due to 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) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). As the Veteran has been awarded an overall 100 percent combined rating effectively since June 12, 2013, the issue of his entitlement to a TDIU during this succeeding period consequently has been rendered moot because he also already is receiving SMC – albeit instead since October 26, 2020, because of the 100 percent schedular rating for his COPD, emphysema and recurrent pneumonia and additional service-connected disability (unspecified depressive disorder with anxious distress) independently ratable at 60 percent or more (he has a 70 percent rating for this other service-connected disability). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008).   Since, as a result, there remains no case or controversy concerning whether the Veteran is additionally entitled to this benefit sought, this appeal for a TDIU from June 12, 2013 onward must be summarily dismissed since there is no remaining case or controversy within the Board's jurisdiction as relating to this TDIU claim. 38 U.S.C. § 7105(d)(5). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.