Citation Nr: 21023655 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-40 947 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) since March 30, 2017 is dismissed. REMANDED Entitlement to a TDIU prior to March 30, 2017 is remanded. FINDING OF FACT Effectively since March 30, 2017, the Veteran has had a combined 100 percent schedular rating for his service-connected disabilities. CONCLUSION OF LAW The claim of entitlement to a TDIU since March 30, 2017 is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 4.16(a), 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to November 1999. This appeal to the Board of Veterans’ Appeals (Board) originated from a May 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board took jurisdiction over this TDIU claim in its January 2019 decision since part and parcel, so derivative, of other claims the Veteran also had appealed to the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, rather than immediately deciding this claim, the Board instead remanded it back to the RO (Agency of Original Jurisdiction (AOJ)) since “inextricably intertwined” with other claims also being remanded for further development. This also would give the Veteran time to provide needed information concerning this TDIU claim, including by completing a TDIU application (VA Form 21-8040). A subsequent February 12, 2019 Report of Contact indicated the Veteran stated that he was not applying for a TDIU. Consequently, in a June 2020 letter, the RO notified him that his appeal for a TDIU had been withdrawn based on his written request dated December 12, 2019. However, the Board does not see any such written confirmation in the file. Moreover, in July 2020, the Board again recognized this claim as still on appeal when again remanding it back to the RO since still inextricably intertwined with another claim also being remanded. Withdrawals of an appeal must be in writing – except, if on the record during a hearing, because the hearing, once transcribed, is reduced to writing to satisfy this requirement. 38 C.F.R. § 20.204(b). But, even then, the withdrawal must be “explicit, unambiguous, and done with a full understanding of the consequences of such action.” See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As such, the Board is continuing to consider this TDIU claim – although, as will be discussed, it is now partly moot owing to the Veteran’s receipt of a combined 100 percent schedular rating for his service-connected disabilities as of March 30, 2017.   1. Entitlement to a TDIU since March 30, 2017. Effectively since March 30, 2017, the Veteran has had a combined 100 percent schedular rating for his service-connected disabilities. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) 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 a 100 percent schedular rating was awarded for the same period). The Veteran's award of a total schedular rating was based on the combination of all his service-connected disabilities – albeit some more so than others, and no single disability is rated as 100-percent disabling. The grant of a 100 percent disability rating does not always render moot the issue of entitlement to a TDIU. VA’s duty to maximize a claimant’s benefits includes considering whether his disabilities also 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). This case, however, is distinguishable from Bradley and its progeny in that grant of a TDIU would not be predicated on a single disability but, instead, on multiple service-connected disabilities. Specifically, the grant of entitlement to a TDIU would be based on the cumulative symptomatology associated with the Veteran’s several service-connected disabilities. Therefore, the grant of a TDIU would be premised on impairment from several service-connected disabilities and not just a single disability.   Because, since March 30, 2017, the Veteran has had no single service-connected disability rated as 100-percent disabling, and his TDIU would be predicated on multiple service-connected disabilities, the percentage rating criteria for SMC at the housebound (HB) rate would not be met at any point since March 30, 2017. He does not have a service-connected disability rated as 100-percent disabling and another service-connected disability independently rated (so apart from that) as at least 60-percent disabling. As such, entitlement to a TDIU since March 30, 2017 is moot because the holdings in Bradley do not apply to the facts of this case. Thus, there remain no allegations of error of fact or law for appellate consideration regarding TDIU entitlement from that date onwards, so the claim for this benefit since March 30, 2017 is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. REASONS FOR REMAND 2. Entitlement to a TDIU prior to March 30, 2017. A TDIU 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 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 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or a single bodily system are treated as one, collective or aggregate, disability. Id. Substantially gainful employment is defined as work that is more than marginal, and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States, Department of Commerce, as the poverty threshold for a family unit. Marginal employment also may be held to exist, on a facts-found basis (includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 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), 4.18. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (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 For this remaining period at issue prior to March 30, 2017, the Veteran had a combined 90 percent rating for his service-connected disabilities from October 19, 2015 to March 29, 2017. He also had combined 70 and 80 percent ratings, respectively, as of February 4th and 5th, 2015, and at least one of his service-connected disabilities was rated as at least 40-percent disabling. Thus, having met the threshold minimum rating requirements for TDIU consideration (that is, on a schedular basis according to 38 C.F.R. § 4.16(a) without need to additionally consider the extra-schedular provisions of § 4.16(b)), the remaining question is whether he was unemployable during this earlier period because of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Based on the existing evidence in the file, the Board is unable to make this determination – including in terms of whether he was just marginally employed or worked in a substantially gainful capacity. To date, he has not submitted a TDIU application (VA Form 21-8940), nor has he provided his full employment history. Perhaps, as mentioned, this lack of response is because he no longer wants to pursue this claim. But, if indeed his preference, he must provide more definitive indication of this to have this remaining portion of his claim withdrawn. VA mental disorder examination reports dated in January and December 2016 show the Veteran had been working full-time at the Social Security Administration (SSA) as an Information Technology (IT) analyst since 2014, so for the preceding two or so years. It is still unclear, however, his employment status for the entirety of the period under review. Accordingly, this remaining portion of the TDIU claim is REMANDED for the following action: 1. Clarify whether the Veteran is still claiming entitlement to a TDIU or, instead, is withdrawing his appeal of this claim and, therefore, no longer wants to be considered for this benefit (the only period still at issue is prior to March 30, 2017). If he no longer wants to be considered for this benefit, have him document this in writing. 2. If, instead, he still wants to be considered for this benefit prior to March 30, 2017, again ask that he complete and return an official TDIU application (VA Form 21-8940), also that he provide any other needed information – such as concerning his approximate income and whether any accommodations were made in his employment owing to his service-connected disabilities.   3. Then complete all needed other development depending on whether the Veteran indicates he is versus is not still pursuing this claim. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.