Citation Nr: 21029924
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 16-08 879
DATE: May 17, 2021

ORDER

Entitlement to a total disability rating based upon unemployability due to service-connected disabilities (TDIU) is denied.

FINDING OF FACT

The Veteran has one service-connected disability which is rated at 100 percent effective from November 23, 2013.  The Veteran has not been granted service connection for any other disability.

CONCLUSION OF LAW

The criteria for a separate award of a TDIU predicated on a single disability have not been met. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the United States Air Force from July 1978 to January 1980.

In March 2021, the Board remanded this issue for additional development; the Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App, 268, 271 (1998).  

Entitlement to a TDIU

The Veteran asserts he warrants a TDIU.  In a May 2013 lay statement, the Veteran conveyed that "mental depression"/ "mental condition" has rendered him unable to obtain and maintain substantially gainful employment.  The Board has considered that the Veteran is unemployable due to his mental health disability. However, the Veteran has never been service connected for any mental health disability.  

While the Board recognizes that VA clinicians have indicated that the Veteran endorsed stressors that included unemployment as early as 2011, the record is bereft of competent clinical evidence that suggests any connexity between unemployment and any aspect or incidence of service.  Here, the Board notes that competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).  

 A review of the claims file discloses that the Veteran is currently in receipt of a 100 percent rating for residuals from lung cancer, effective from May 24, 2013.  The Veteran has not been granted service connection for any other disability.  See March 24, 2021 Rating DecisionCodesheet.

The receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU.  See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008).  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s).  See id.  Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted.  See Buie v. Shinseki, 24 Vet. App. 242, 250-51.

While the Veteran is in receipt of a 100 percent rating for residuals of lung cancer, the preponderance of the evidence fails to disclose that the Veteran has been rendered unemployable due to his service connected disability.  As the Veteran has no other service-connected disabilities, the provisions articulated above are not for application.  Consequently, entitlement to a TDIU is denied.

 

 

K.R. Kardian 

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. J. Komins, 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.