Citation Nr: 22018998 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-39 698 DATE: March 31, 2022 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 11, 2020, is denied. FINDINGS OF FACT 1. Prior to June 12, 2018, the evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. 2. From June 12, 2018, there is no evidence that a single disability resulted in an inability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to June 12, 2018, the criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. 2. From June 12, 2018, the criteria for a TDIU based on a single disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2002 to January 2006. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in April 2020, February 2021, June 2021, and January 2022, and the matter has been returned for appellate consideration. The Board finds substantial compliance with the January 2022 remand directives (to include referral of issues of entitlement to a TDIU, prior to August 11, 2020, to the Director, Compensation Service) and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU, prior to August 11, 2020. 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." The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran does not to meet the applicable percentage, standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The assignment of a 100 percent combined disability rating does not necessarily render the issue of TDIU moot in all cases. See Buie v. Shinseki, 24 Vet. App. 242, 247 (2011) (noting the VA's general duty to maximize a veteran's benefits). The VA's duty to maximize benefits provides that, when a veteran becomes eligible for special monthly compensation, the Board must consider whether he is entitled to receive special monthly compensation pursuant to 38 U.S.C. § 1114(s) without having to file a separate claim. Buie, 24 Vet. App. at 247 (citing Bradley v. Peake, 22 Vet. App. 280, 294 (2008)); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (noting VA's policy to consider special monthly compensation where applicable). The statute provides, in pertinent part: "If the veteran has a service-connected disability rated as total, and... has additional service-connected disability or disabilities independently ratable at 60 percent or more," then VA will award him special monthly compensation. 38 U.S.C. § 1114(s). The pertinent part of the implementing regulation provides: "The special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and... [h]as additional service-connected disability or disabilities independently ratable at 60 percent." 38 C.F.R. § 3.350(i)(1). There are two important periods here. First, prior to June 12, 2018, the Veteran was in receipt of a combined 60 percent rating, with her psychiatric disorder rated at 50 percent, and with asthma and her cervical spine disability rated at 10 percent each. Such a rating does not establish eligibility for a schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, consideration must nevertheless be given as to whether a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). From June 12, 2018, to August 11, 2020, the Veteran was in receipt of 100 percent combined disability rating. As noted above, however, the grant of a 100 percent rating does not necessarily extinguish a claim for a TDIU. In this case, the Veteran contended at her hearing that her psychiatric disorder alone resulted in an inability to secure or follow a substantially gainful occupation. Should that contention be confirmed, it would result in her receiving a TDIU prior to June 12, 2018, and SMC for the period between June 12, 2018, and August 11, 2020. Thus, the question for the Board is whether the Veteran's service-connected disabilities prevent the Veteran from securing or following a substantially gainful occupation. Following a review of the evidence, the Board finds that it has not been shown that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation, prior to June 12, 2018. The Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability) provided that the Veteran was last employed full-time in October 2013. The Veteran identified her psychiatric disability as the primary source of her inability from securing or following any substantially gainful occupation. The Veteran's highest level of education attained is two years of college. Review of the Veteran's VA examination reports from May 2017, May 2019, and August 2020, the Veteran's psychiatric disorder resulted in social and occupational impairment with reduced reliability and productivity. The January 2022 Board decision remanded the Veteran's claim of TDIU for consideration from the Director, Compensation Service. To that end, the February 2022 Memorandum was prepared by the Director. The Director found that the evidence fails to support the contention that the Veteran's service-connected conditions prevented employment. The Director acknowledged that the Veteran's records show a history of moderately impairing mental health symptoms that resulted in problems with sleep, anxiety, discomfort with being around people, irritability, and anger. Moreover, it was noted that the Veteran's neck condition would impair the Veteran's ability perform physical labor. The Director noted that the Veteran reported performing best in solitary positions and reported enjoying activities like gardening, woodworking and caring for animals. However, the Director opined that while the records show limitations to some forms of labor, the evidence does not support that the Veteran's service-connected conditions would have resulted in total impairment or complete loss of occupational functioning. In light of the above, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure and maintain substantial and gainful employment. Despite the Veteran's report of occupational difficulties due to her service-connected psychiatric disorder, the Board notes that the VA examiners found the Veteran's PTSD symptoms to result in social and occupational impairment with reduced reliability and productivity. The Veteran's formal applications for a TDIU solely designate her psychiatric disorder as the source of his alleged inability to secure and follow a gainful occupation. The objective medical evidence of record certainly establishes that the Veteran's service-connected disabilities would make finding employment more difficult. However, the legal standard is not simply whether the Veteran's occupational capacity is impacted by her disabilities; indeed, the entire point of the VA disability rating system is to compensate veterans for the impact that their disabilities have on their occupational outlook. Instead, the question is whether the Veteran's service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. That burden, quite simply, is not met for this time period. In summary, for the period prior to June 12, 2018, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The weight of the evidence is against the Veteran's claim and is not in approximate balance; there is no doubt to be resolved. Entitlement to a TDIU prior to June 12, 2018, is denied. From June 12, 2018, the Veteran has been in receipt of a 100 percent combined schedular rating. This period coincides with the receipt of a 100 percent rating her service-connected asthma. Despite her receipt of a 100 percent rating, the Board must determine whether any one of his disabilities singularly resulted in an inability to secure or follow a substantially gainful occupation, thereby qualifying him for special monthly compensation. There is, however, no evidence for this period indicating that one of her disabilities alone would result in an inability to secure or follow a substantially gainful occupation. The Board has already discussed the impacts from the Veteran's service-connected PTSD; while she is also service-connected for neck condition, there is no evidence that any of this disability, to include her psychiatric disorder, would singularly result in an inability to secure or follow a substantially gainful occupation. Accordingly, from this point forward, the Board finds that entitlement to a TDIU based on a single disability is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.