Citation Nr: 21025594 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-11 244A DATE: April 28, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to the Veteran’s service-connected disabilities (TDIU) prior to May 3, 2017, is denied. FINDING OF FACT The preponderance of the evidence shows the Veteran’s service-connected disabilities did not render him unable to secure or follow substantially gainful employment, consistent with his education and work experience, prior to May 3, 2017. CONCLUSION OF LAW For the period prior to May 3, 2017, the criteria for an award of TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to January 1983, including service in Vietnam from July 1969 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in January 2018 and August 2020. 1. Entitlement to a total disability evaluation based on individual unemployability due to the Veteran’s service-connected disabilities (TDIU) A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as “one disability” to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of a TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for Veterans Claims has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates 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 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). However, a grant of a 100 percent disability does not always render the issue of entitlement to a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether a veteran’s disabilities establishes 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 a veteran has a 100 percent disability rating for a single disability, and VA finds that a 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)). In this case, the Veteran has had a combined rating of 100 percent since May 3, 2017. Since that date, he has also been in receipt of SMC under 38 U.S.C. § 1114(s), based on a rating of 100 percent for chronic kidney disease and additional separate and distinct service-connected disabilities independently ratable at 60 percent or more. This represents the maximum benefit available to the Veteran. As such, the Board will only focus on whether a TDIU is warranted for the period prior to May 3, 2017. For the period prior to May 3, 2017, the Veteran had the following disabilities that were service-connected: chronic kidney disease rated 60 percent, effective December 16, 2010; idiopathic contracture middle and ring fingers, right hand, rated 30 percent effective February 1, 1983; insomnia disorder with adjustment disorder rated 30 percent effective October 29, 2010; tinnitus rated 10 percent effective October 29, 2010; noncompensable bilateral hearing loss; and noncompensable hypertension. Based on these ratings, the Veteran meets the percentage threshold for consideration of a TDIU on a schedular basis from December 16, 2010. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. In the Veteran’s January 2020 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he reported that he last worked full time in 2006 as the Superintendent of Public Land and Building. He completed four years of college with no other specific training. He also wrote that he retired due to age and that he had chronic kidney disease stage II. In his May 2012 notice of disagreement, the Veteran conveyed that he was once a carpenter and heavy equipment operator, but he could no longer do that nor even hold a hammer. A January 2011 hand VA examination noted that the Veteran’s bilateral hands did not reveal a decrease in strength with regard to pulling, pushing, and twisting. His dexterity did not reveal a decrease in twisting, probing, writing, touching, and expression. Further, during flare-ups he experienced neither functional impairment nor any limitation of motion of the joint. The examiner determined that his usual occupation was not affected by his condition and the effect on his daily activity was difficulty using his right hand. At an October 2011 hypertension VA examination, the Veteran reported current symptoms of headaches. He also reported impairments of not being able to climb, be in the hot sun, or drink cola or alcohol. At the October 2011 kidney VA examination, the Veteran reported symptoms of back pain, lower abdominal pain, lethargy, and edema. He denied various symptoms of dyspnea, fatigue, weakness, excessive daytime/nighttime urination, urinary leakage, or incontinence. At the time, he did not require dialysis and his renal condition did not limit him to sedentary activities. The examiner indicated that his kidney condition did not impact his ability to work. The Veteran underwent a hearing loss and tinnitus VA examination in November 2011. The functional impairment was described as difficulty hearing with background noise and ringing in both ears. In October 2014, the Veteran complained of sleeping problems and was diagnosed with insomnia disorder. In July 2015, a psychology note indicated that he had first come for help with insomnia, but the Veteran reported that it had since resolved with assistance from medication. In February 2016, he reported that his sleeping had improved. He did not take sleep aids unless necessary. The Board finds the VA examinations to be adequate for rating purposes, as the examinations were based on in-person examinations, medical expertise, and consideration of lay evidence. Given the forgoing, the Board finds that the Veteran’s service-connected disabilities did not preclude him from the securing and following a substantially gainful occupation consistent with his education, skills, training, and work history prior to May 3, 2017. The evidence demonstrates he has a college education, and he worked for years in a managerial role as a superintendent. He also indicated that he retired due to his age. The competent medical evidence shows the Veteran would have difficulty with physically demanding jobs, primarily due to his chronic kidney disease. However, the Veteran’s previous employment experience and his education level as described above demonstrate the ability to perform work that is not physically demanding. Several of the VA examination reports reflected that the service-connected disabilities in question (e.g., hand, hypertension, kidney) would not impact the Veteran’s ability to work in all environments and the Board finds these reports to be probative and deserving of weight as they examined the Veteran and were conducted to assess the level of impact from the specific disability being examined at the time. Additionally, VA medical records prior to May 2017 tend to show that the Veteran’s insomnia disorder was controlled with medication. Thus, the Board finds that a review of the totality of the relevant evidence weighs against a finding that the Veteran was rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to May 3, 2017. Accordingly, a TDIU is not warranted for that period. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.