Citation Nr: 21041404 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 06-17 656A DATE: July 9, 2021 ORDER Entitlement to a total disability evaluation due to individual unemployability (TDIU) for purposes of special month compensation (SMC) is granted. FINDING OF FACT The Veteran's service-connected right shoulder disability prevents him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1974 to September 1977. The Veteran testified before the undersigned Veterans Law Judge in June 2009 travel Board hearing. A transcript of that hearing is of record and included in the Veteran's claims file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA). The Board remanded the Veteran's appeal for additional development in June 2010, May 2017, May 2018, and November 2020 for further development. In its November 2020 decision, the Board observed that it denied entitlement to an increased rating for lumbosacral strain in excess of 10 percent prior to June 5, 2007 and in excess of 40 percent from June 5, 2007 to July 26, 2015 in its May 2018 decision. As a result, the period of appeal before the Board is limited to the period from July 27, 2015. The Board then denied a rating in excess of 40 percent from July 27, 2015 for the Veteran's service-connected thoracolumbar spine disability. In its November 2020 decision, the Board also remanded the issue of the Veteran's entitlement to a TDIU from July 15, 2017, directing the Agency of Original Jurisdiction (AOJ) to undertake additional development regarding the Veteran's employment history. The Board also directed the AOJ to refer to the Director, Compensation Services (the Director), the question of whether the Veteran was entitled to a TDIU on an extraschedular basis. The AOJ made the referral in January 2021, and the Director concluded that a TDIU on an extraschedular basis was not warranted in January 2021 based on the Veteran's service-connected thoracolumbar spine disability. In a February 2021 supplemental statement of the case, the AOJ continued a denial of entitlement to a TDIU, and the Veteran's appeal is once again before the Board. 1. Entitlement to a TDIU for Purposes of Special Monthly Compensation The Veteran has been rated as 100 percent disabled from July 27, 2015, the start of the period on appeal currently before the Board. The question before the Board is whether he is entitled to a TDIU based on a single service-connected disability. The Board first addresses why the issue of a TDIU is not moot and then address the basis for granting a TDIU for a single service-connected disability. A. Entitlement to a TDIU is not Moot 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). 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 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 TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to 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 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). The total rating for the single disability for SMC purposes may be based on a schedular rating or a TDIU awarded for a single disability. Thus, if a veteran's total rating is based on a combination of his service-connected disabilitiesi.e., his individual service-connected disabilities are each rated at less than 100 percentthen a TDIU is not moot if it could be granted based on a single disability, thereby making a veteran eligible for SMC. However, if 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's combined rating from June 25, 2017 is 100 percent; however, none of his service-connected disabilities is evaluated as 100 percent disabling. Thus, the issue of his entitlement to a TDIU is not moot and the question for the Board is whether a TDIU is warranted for a single service-connected disability. B. Entitlement to a TDIU for a Single Service-Connected Disability In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." Pertinent here, an award of a TDIU is warranted where a veteran is unable to secure or follow a substantially gainful occupation due to a single service-connected disability rated 60 percent or more. From May 1, 2015, the Veteran's service-connected right shoulder disability has been rated as 60 percent. Thus, it satisfies the schedular requirements for a TDIU based on a single service-connected disability. See 38 C.F.R. § 4.16. Furthermore, the Board concludes that the Veteran's right shoulder disability has precluded the Veteran from following a substantially gainful occupation. The Veteran worked for an American technology company for more than 30 years. A July 2015 VA examination indicated that his right shoulder disability impaired his ability to perform his duties due to pain and fatigue in his right shoulder. January 2016 VA treatment records documented his reports that he could no longer perform his duties as an electronic technician because he could not manage working with small electronic components and parts. May 2016 VA treatment records document the Veteran's report that his right shoulder disability made it difficult for him to manage safely the chemicals used as part of his job. The Veteran was at that time encouraged to apply for disability benefits administered by the Social Security Administration, and he was seeking both short-term and long-term disability benefits through his employer. He reported in May 2016 that his employer needed to know if he was permanently disabled, and he was referred to the VA CHOICE program for a functional competency examination for purposes of that determination. The Board notes that November 2018 VA treatment records indicate that the functional competency examination was completed in 2016. The functional competency examination is not included in the Veteran's claims file. The Veteran again sought a functional competency examination in November 2018 for purposes of his long-term disability benefits. That examination is not included in the Veteran's claim file either. The record further indicates that the Veteran has been on long-term disability leave from his employer during the period on appeal. November 2016 VA treatment records document that the Veteran was not working and was disabled due to an accident, presumably his February 2014 motorcycle accident brought about by his thoracolumbar spine disability that resulted in shoulder replacements surgery in February 2014. In light of the foregoing, the Board concludes that the Veteran's right shoulder disability prevents him from following a substantially gainful occupation. Accordingly, a TDIU based on the Veteran's service-connected right shoulder disability is granted from the date of the Veteran's disability leave from his long-time employer. The date of that leave, however, is not clearly identified in the record. As the Board noted in its November 2020 remand, the record contains varying information regarding when the Veteran was no longer able to perform his work duties for his long-time employer. A March 2019 VA examination for his thoracolumbar spine disability indicates that he stopped working at some point in 2015. A June 2017 VA psychiatric examination, however, indicates that he stopped working in October 2016. Pursuant to the Board's remand, the AOJ provided the Veteran with a blank VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and a blank VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, in late November 2020. In December 2020, the Veteran requested that he be afforded more time to provide the information sought in November 2020. To date, the Veteran has not provided that information. For these reasons, the Board defers assigning an effective date for the grant of a TDIU. In implementing the Board's award of a TDIU, the AOJ should identify the date from which the Veteran went on disability from his long-term employer in order to assign an effective date for a TDIU. In concluding that a TDIU is warranted for the Veteran's service-connected right shoulder disability, the Board notes the impact that his service-connected thoracolumbar spine disability had on his ability to perform his job duties. However, the Veteran maintained employment with his back disability for many years, and it was only after his right shoulder injury in a motor vehicle accident due to his thoracolumbar disability that he sought short- and long-term disability from his employer. Moreover, the Board observes that a July 2015 VA examination notes that his thoracolumbar spine disability limited his ability to stand and walk, activities that were not required for his work as an electronic technician. Thus, his thoracolumbar spine disability has not precluded the Veteran from pursuing a substantially gainful occupation. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Douglas M. Humphrey, 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.