Citation Nr: 21032446 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-17 995 DATE: May 27, 2021 ORDER 1. Prior to February 12, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. 2. From February 12, 2010 to January 13, 2016, entitlement to a TDIU for a single disability (or "one disability") to form the basis for an award of special monthly compensation (SMC) is denied. FINDING OF FACT 1. Prior to February 12, 2010, the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. 2. The Veteran is not warranted a TDIU based on a single service-connected disability, excluding his service-connected schizoaffective disorder rated at totally disabling, prior to January 13, 2016, for the basis of an award of SMC. CONCLUSION OF LAW 1. Prior to February 12, 2010, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16. 2. February 12, 2010 to January 13, 2016, the criteria for a TDIU for a single disability (or "one" disability) to form the basis for an award of special monthly compensation (SMC) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to August 1981. This appeal to the Board of Veterans' Appeals (Board) is from February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in August 2020 to the Director of Compensation for extraschedular consideration. The Director of Compensation denied the Veteran's TDIU claim on an extraschedular basis in January 2021. The Board notes that the aforesaid decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). 1. Prior to February 12, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. 2. From February 12, 2010 to January 13, 2016, entitlement to a TDIU for a single disability (or "one disability") to form the basis for an award of special monthly compensation (SMC) is denied. By way of procedural history, a December 2018 RO rating decision during the pendency of this appeal effectuated the Board's August 2018 grant of service connection for schizoaffective disorder and assigned an initial 100 percent schedular rating retroactively effective from February 12, 2010. The higher U.S. Court of Appeals for Veterans Claims (Court/CAVC) 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 him 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). There are exceptions to this general rule. Namely, the appeal for a TDIU from February 12, 2010 onwards is not necessarily moot because an award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2011). By way of detail, SMC may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the Veteran's total rating is based on a combination of his service-connected disabilities, (which would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the Veteran eligible for SMC. If, however, he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for SMC. Here, the Veteran has been service-connected for schizoaffective disorder, rated at 100 percent, effective February 12, 2010; chondromalacia of the bilateral knees, both rated at 10 percent, from February 1, 1983 for the left knee, and January 1, 1984 for the right; left knee scar rated at 20 percent, effective January 14, 2016; right knee scar, rated at 10 percent, effective January 14, 2016; and, limitation of flexion of the left knee rated at 10 percent from January 14, 2016. In addition, he has been in receipt of SMC under the provisions of 38 U.S.C. § 1114 (s) effective January 14, 2016. Thus, given that the Veteran is receiving the maximum benefits allowed under the applicable statutes and regulations, the issue of entitlement to a TDIU from February 12, 2010 is moot. The Board notes that SMC is not warranted for the period prior to January 14, 2016 because the total rating of the Veteran's remaining service-connected disabilities are not 60 percent or more. Total disability ratings for compensation may be assigned, where the scheduler rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-scheduler consideration of all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice, supra. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran contends that his service-connected bilateral knee condition rendered him unemployable prior to February 12, 2010. For the period on appeal, the Board finds that the evidence of record weighs in favor of a finding that the Veteran is precluded from securing and maintaining substantially gainful employment in a physical capacity. See July 2019 VA Examination Report. Rather the issue that the Board must decide is whether the Veteran is capable of sedentary employment for the applicable period, given the totality of his circumstances. The Court has held that because VA does not define "sedentary employment" in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). In Ray v. Wilkie, the Court held that "[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to": (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, "[b]y discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Id. at 62. The record reveals that the Veteran has not worked since March 1993. See September 2020 VA 21-8940. Upon remand, the Director of Compensation opined that the while the Veteran had limitations caused by service-connected conditions during the time period in question, the cumulative evidence does not support that any service-connected condition, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Prior to February 12, 2010, the Veteran has been service-connected for chondromalacia for the left and right knees both rated at 10 percent from February 1, 1983 for the left knee, and January 1, 1984 for the right. As his combined disability rating is 10 percent from February 1, 1983, and 20 percent from January 1, 1984, the Veteran does not meet the criteria for a schedular TDIU, but consideration for extraschedular TDIU must still be considered. As mentioned, the Director of Compensation denied the Veteran's TDIU claim on an extraschedular basis. Despite this denial, the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala, 456-57. Prior to February 1, 2010 Turning to the Veteran's educational and work experience, the evidence of record indicates that the Veteran has an Associate Degree in Business Administration, a Bachelor of Arts degree in Accounting, and is 21 hours short of a Master of Business Administration Degree. See August 1997 West Florida Community Care Center Discharge Plan. The record reveals the Veteran worked as a defense contractor for 1 year, then worked for the National Credit Union from years 90-93. Id. The Veteran reported working at Lowes in 1998, part-time, but left due to his inability to stand for prolonged periods and concentration issues because of his mental illness. Id. Pertinent to the functional limitations associated with his service-connected disabilities, March 1998 examiner noted that the Veteran's knees could significantly limit functional ability during flare ups when used repeatedly over time. The Veteran underwent a VA examination for his bilateral knee condition in May 2001. He reported last working in April 1993, and stated that his knees prevent him from doing activities during the day. The September 2011 VA examination report noted that the Veteran is unable to think when he stands and walks related to pain. A January 2016 VA examiner noted the Veteran's report that he is unemployable due to his knee pain. In January 2016, the Veteran underwent a mental disorders VA examination, he reported that he worked for approximately 1 year and a half as an accountant until he had an aneurism and could no longer work. He stated he never worked again after his aneurism. Lastly, a July 2019 VA examiner opined that based on the documented medical evidence, to include any diagnostic results, the Veteran's assertions, self-reported history, and tolerance demonstrated during the examination, the Veteran should have the ability to sufficiently perform at least essential sedentary to low-intensity functional tasks with the performance being impacted by: pain, substantial kneeling, squatting, lifting, pulling, walking, and pushing greater than low to moderate loads infrequently. Based on the foregoing, the Board finds that, while the Veteran's service-connected disabilities, prior to February 12, 2010, impact his ability to secure and follow employment in a physical capacity, due to the limitations associated with his bilateral knee disability, he is able to work in a sedentary capacity. The record reflects that the functional effects of these disabilities did not prevent him from securing or following substantially gainful sedentary employment. In this regard, the July 2019 VA medical opinion indicating that the Veteran's service-connected knee disabilities do not preclude sedentary work, as defined above, weigh against finding that he is unemployable due his service-connected disabilities since the Veteran's background indicates he is well qualified for sedentary work. The record establishes that the Veteran obtained an accounting and business administration degree upon discharge from service, and worked as an accountant for 1 and a half years, as a defense contractor for 1 year, then worked for the National Credit Union from years 90-93. The Board finds that the Veteran's occupational background as an accountant and educational attainment of an accounting and business administration degree confirms that he is well qualified for sedentary occupations. Although the Veteran has reported symptoms of knee pain, instability, and locking with prolonged mobility, the Veteran did not indicate that these symptoms, or any other symptoms associated with his service-connected disabilities, prior to February 12, 2010, prevented him from performing the mental tasks associated with sedentary employment. In reaching this decision, the Board has considered the findings from VA examiners as well as the available evidence of the Veteran's education, training, and work history as reflected in the record; in addition to the other the lay and medical evidence regarding the effects of his service-connected disabilities, as outlined above. In consideration of the foregoing, the Board finds that the weight of the evidence supports finding that prior to February 12, 2010, the Veteran could perform some form of employment in light of his specific history and disability picture. See Withers v. Wilkie, 30 Vet. App. 139 (2018); Geib v. Shinseki, 733 F.3d 1350 (2013) (determination of unemployability is not a medical question). Based on the foregoing, the Board finds that the requirements for a TDIU prior to February 12, 2010 have not been met. Thus, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). From February 12, 2010 to January 13, 2016 From February 12, 2010 to January 14, 2016, the Veteran has been service-connected for schizoaffective disorder, rated at 100 percent effective February 12, 2010, and chondromalacia for the left and right knees both rated at 10 percent from February 1, 1983 for the left knee, and January 1, 1984 for the right. As detailed above, during the applicable period, Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the Veteran's total rating is based on a combination of his service-connected disabilities, (which would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the Veteran eligible for SMC. If, however, he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for SMC. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.