Citation Nr: 21025673 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 10-40 410 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is DENIED. FINDINGS OF FACT 1. The current appeal arises from a claim for an increased rating for gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), and status post-cholecystectomy, effective June 1, 2009. 2. As of March June 1, 2009, the Veteran has been assigned a 100 percent schedular rating for a service-connected GERD, IBS, and status post-cholecystectomy disability, and she has received special monthly compensation. CONCLUSION OF LAW The claim for TDIU is moot. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Air Force from September 1988 to May 2009. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. In February 2009, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated claims for service connection for gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), and status post-cholecystectomy. In August 2009, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted service connection for GERD, IBS, and status post-cholecystectomy disabilities. The AOJ properly assigned the effective date(s) as the day after the Veteran was discharged from the U.S. Air Force. In September 2009, the Veteran submitted a notice of disagreement (NOD) with the ratings assigned the three service-connected disabilities. In May 2010, the AOJ issued a rating decision. At that time, the AOJ merged the separate grants and ratings for the three service-connection disabilities into a single evaluation (hereinafter, digestive disability). In June 2017, the Board addressed the Veteran’s claim for a TDIU. Citing Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board inferred a claim for TDIU was raised by the Veteran’s increased rating claim for the service-connected digestive disability. The Board recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. At that time, the Board remanded the claim for additional development. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on her ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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). In November 2020, the AOJ issued a rating decision. At that time, the AOJ assigned an initial 100 percent rating for the Veteran’s service-connected digestive disability, effective June 1, 2009. Additionally, the AOJ assigned entitlement to special monthly compensation based on housebound criteria, effective June 1, 2009. The Board observes that the Veteran’s service-connected digestive disability has been rated at 100 percent on and after June 1, 2009. Since June 1, 2009, the Veteran has also been in receipt of special monthly compensation at the housebound rate due to her digestive disability being rated at 100 percent, and her other service service-connected disabilities surpassing 60 percent. See 38 U.S.C. § 1114 (s) The Board recognizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Indeed, the Veteran has been in receipt of a 100 percent schedular rating and special monthly compensation since June 1, 2009. As the Veteran’s claim for TDIU has been pending since she filed the NOD with the initially assigned rating for the service-connected digestive disability, the Veteran has been in receipt of a total schedular rating and special monthly compensation throughout the course of the entire appellate period. (Continued on the next page) The Board concludes that the total schedular rating that was assigned as of June 1, 2009 does, in fact, moot the TDIU claim on and after that date. In this case, along with the assignment of the 100 percent schedular rating for the digestive disability, the Veteran was also awarded special monthly compensation under 38 U.S.C. § 1114 (s), effective June 1, 2009. The Veteran’s VA benefits are already maximized for the time period on and after June 1, 2009. Consequently, to the extent the TDIU claim encompasses the time period after June 1, 2009, during which the Veteran was already awarded a 100 percent schedular rating and special monthly compensation, the claim is moot. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.