Citation Nr: 21030996 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 07-03 313 DATE: May 20, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran has had a combined 100 percent rating for his service-connected disabilities. 2. The preponderance of the evidence of record establishes that the Veteran does not have a single disability which independently precludes him from engaging in substantially gainful employment throughout the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Air Force from October 1981 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in September 2004. The Board has remanded this appeal, in pertinent part, on numerous occasions, most recently in December 2020. On most recent remand and in a December 2020 rating decision, the AOJ granted service connection for solar keratosis (claimed as dermatitis) and assigned a noncompensable (0 percent) disability rating effective October 1, 2004. Thus, this issue is no longer on appeal before the Board. 1. Entitlement to a TDIU The Veteran has been in receipt of a combined 100 percent schedular rating as of October 1, 2004, the day after his discharge from active duty, and thus during the entirety of this appeal. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means 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). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. In this regard, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities 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). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Alternatively, SMC may be warranted where a TDIU is warranted for a single service-connected disability, and the Veteran has a disability or disabilities that are independently ratable as 60 percent or more and which do not form the basis for the TDIU. However, a TDIU based on multiple service-connected disabilities that are considered as one disability under 38 C.F.R. § 4.16 (a) (for example, disabilities affecting a single body system) may not be used to establish a service-connected disability rated as total for SMC eligibility pursuant to § 1114(s). See Youngblood v. Wilkie, 31 Vet. App. 412 (2019). Based on the foregoing, the question for the Board is whether the Veteran is entitled to a total rating based on individual unemployability due to a single service-connected disability for the purposes of establishing entitlement to SMC at the housebound rate. A TDIU may be assigned where the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of the veteran's service-connected disabilities. The Court has held the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components, one economic and the other non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates 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. The non-economic component contemplates the veteran's ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. In this context, appropriate factors for consideration are the veteran's employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran's age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned to a Veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (a). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16(a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. For the purposes of determining whether the schedular criteria for a TDIU have been met, disabilities of common etiology will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Alternatively, if a Veteran is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in § 4.16(a), the rating authority should refer the matter to the Director of the Compensation Services for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b). As noted, the Veteran has a combined 100 percent rating for his service-connected disabilities throughout the entire period on appeal. The Veteran's service-connected disabilities include 50 percent ratings for a psychiatric disorder and sleep apnea from October 1, 2004; a 40 percent rating for a low back disability from October 1, 2004; a 30 percent rating for a right shoulder disability from October 1, 2004; 20 percent ratings for a left shoulder disability, a neck disability, temporomandibular joint dysfunction, and radiculopathy of the left upper extremity from October 1, 2004; 10 percent ratings for chondromalacia patella of the bilateral knees, tinnitus, sinusitis, spider veins of the right lower extremity, spider veins of the left lower extremity, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, paroxysmal atrial fibrillation, and gastroesophageal reflux disease. The Veteran's neck disability was increased to 30 percent effective August 19, 2014. As a TDIU can only be awarded in cases where the schedular rating is less than total, there is no basis for awarding a TDIU based on consideration of the combined effects of the Veteran's service-connected disabilities as the Veteran has a combined 100 percent schedular rating throughout the rating period. 38 C.F.R. § 4.16(a). However, as noted above, the assignment of a 100 percent combined schedular rating does not necessarily render the issue of TDIU moot because SMC at the housebound rate is payable if a Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a 100 percent rating. Bradley v. Peake, 22 Vet. App, at 293. After a review of the evidence, for reasons set forth below, the Board finds that the Veteran does not have a single disability which solely and independently precluded him from engaging in substantially gainful employment throughout the period on appeal. The preponderance of the evidence establishes that the Veteran's service-connected psychiatric disorder, cervical spine disability, low back disability, and bilateral shoulder disabilities combine to render him unable to secure and following a substantially gainful occupation. At the outset, the Board notes that the Veteran was granted Social Security Administration (SSA) disability based upon his combined psychiatric disorder and musculoskeletal conditions. VA examinations and SSA records do not support a finding that the Veteran's psychiatric disability independently renders him unemployable. See June 2005 and August 2014 VA examinations, March 2008 SSA record. A June 2005 VA examination for mental disorders reflects that the Veteran reported that he had difficulties relating with others, and he reported that he had difficulties with co-workers and was easily angered. A March 2008 SSA record reflects a diagnosis of major depressive disorder with psychotic features. The examiner noted that the Veteran had mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, extreme difficulties in maintaining concentration, persistence, or pace; and had one or two episodes of decompensation due to his psychiatric disorder. The examiner opined that based upon the medical and lay evidence, it was recommended that the Veteran be considered unable to concentrate; and in view of the severity of his clinical features, it was recommended that he be considered incapable. An August 2014 VA examination reflects a diagnosis of unspecified depressive disorder with anxious distress. The examiner noted that the Veteran's mental health concerns were moderate in severity and resulted in moderate functional impairment. The examiner opined that the Veteran's mental health concerns resulted in a moderate amount of social isolation and disruptions in his major relationships, and his mental health concerns, coupled with his physical difficulties reduced his quality of life to a significant degree. The lay statements of the Veteran do not support a finding that the Veteran's psychiatric disability independently rendered him unemployable. In January 2008, the Veteran reported that his sleep apnea and other service-connected disabilities prevented him from securing or following a substantially gainful occupation. He indicated that he became too disabled to work full-time in August 2006. He stated that he had worked as a cardiovascular technician from 2004 to 2006. In August 2008, the Veteran reported that he had been employed from March 2008 in clinical informatics. In June 2009, the Veteran reported that at the time of an April 2009 decision, he had been working, but since that time, he had not been able to work due to his service-connected disabilities. He stated that he had been receiving SSA disability since February 2007 and was working on a SSA work trial during the timeframe. In April 2011, the Veteran testified that his position in clinical informatics lasted for approximately six months, and the position required him to sit, while teaching co-workers a computer system and fix errors that were inputted into the computer system. He testified that he had to resign because he was unable to sit, and he had arm numbness from using the computer and mouse. In addition, VA examinations and SSA records do not reflect that the Veteran had a single physical disability which rendered him unemployable. See March 2008 SSA record, July 2005, October 2005, June 2008 and October 2014 VA examinations. A March 2008 SSA record reflects a diagnosis of chronic pain syndrome, and cervical and lumbar degenerative disc disease. The examiner noted that the Veteran had exertional limitations which included occasionally and frequently lifting and carrying 10 pounds, and unlimited pushing or pulling. The examiner also noted that during an 8 hour day with normal breaks the Veteran could stand or walk for at least 2 hours, sit for approximately 6 hours or walk with normal breaks at least 2 hours. The examiner noted that the Veteran's postural limitations included occasionally being limited from climbing ramps or stairs, balancing, stooping, kneeling, crouching, and crawling; and being prevented from climbing ladders, ropes, or scaffolds. A June 2008 VA examination reflects a diagnosis of bilateral chondromalacia. The examiner noted that the Veteran's knee disability limited prolonged running, squatting, and kneeling due to discomfort in his knees. A June 2008 VA examination reflects a diagnosis of chronic cervical strain with degenerative arthritis and radiculopathy without radicular motor weakness, and lumbar sprain with degenerative disc disease. The examiner noted that the Veteran had limitation in prolonged standing, walking, bending, stooping, and lifting weight due to discomfort of his low back pain, and turning his head due to chronic neck pain. The examiner opined that the Veteran was employable in sedentary to light exertional capacity. An October 2014 VA examination reflects a diagnosis of degenerative disc disease of the cervical spine. The Veteran reported that he had flare-ups of his cervical spine, which occurred twice in the past 12 months, and which required him to remain virtually immobile, and he had to stay in his bed or his chair. The Veteran reported that there was numbness and tingling which occurred approximately twice a day for a half hour in the fourth and fifth fingers of his left hand, which had worsened; and his right arm would go completely numb and cold approximately twice a day. An October 2014 VA examination reflects a diagnosis of bilateral frozen shoulder. The Veteran reported decreased motion of his arms, and he had a decreased ability to raise his arms above shoulder level. The examiner noted that the Veteran's right shoulder disability was such that the Veteran was able to lift 10 pounds to shoulder level, but not above. The medical evidence of record indicates that the Veteran's skin conditions, erectile dysfunction, bilateral spider veins, temporomandibular joint, and achalasia do not impact his ability to work. See July 2005, May 2008, June 2008, August 2014, May 2016, October 2019 VA examinations. The Board finds that, in light of the Veteran's education and work experience, the preponderance of the evidence of record establishes that the Veteran does not have a single disability which independently precluded him from engaging in substantially gainful employment throughout the period on appeal. Accordingly, the Board also finds based on the evidence as outlined above, that entitlement to the ancillary benefit of SMC at the housebound rate is not warranted for the entire period on appeal. The Veteran has not met the schedular criteria for SMC at the housebound rate under 38 C.F.R. § 3.350(i) at any point during the period on appeal. The Veteran does not have a single disability which is rated at 100 percent disabling independently and the Veteran does not have a single disability which independently precluded him from engaging in substantially gainful employment throughout the period on appeal. The record reflects that it is the combination of the Veteran's service-connected disabilities that have rendered him unable to obtain and maintain substantially gainful employment. As no single disability rating is at 100 percent, the threshold schedular requirement for SMC at the housebound rate under any theory is not met, and may not be granted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (Continued on the next page) Based upon a preponderance of the evidence the Board finds that entitlement for a TDIU based upon a single disability for the purposes of satisfying the statutory requirement of a 100 percent rating is not warranted, and the appeal must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.