Citation Nr: 23004635 Decision Date: 01/25/23 Archive Date: 01/25/23 DOCKET NO. 19-16 053A DATE: January 25, 2023 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disabilities is denied. FINDING OF FACT The evidence of record does not persuasively show that the Veteran's service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2018 rating decision by the VA Regional Office (RO). In the Veteran's June 2019 substantive appeal, the Veteran requested a Board hearing. In a September 2022 statement, the Veteran, through his representative, withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. Entitlement to a TDIU is denied. In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a). A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. When he initiated his claim in September 2017, the Veteran had a combined service-connected disability evaluation of 90 percent. The Veteran was service-connected for residuals of a gunshot wound of the left elbow, forearm, and hand rated as 50 percent disabling; residuals of a shell fragment wound of the left leg rated as 30 percent disabling; abdominal scars rated as 30 percent disabling; a splenectomy rated as 30 percent disabling; residuals of a gunshot wound of the left shoulder rated as 10 percent disabling; tinnitus rated as 10 percent disabling; two separate scars each rated as 10 percent disabling; as well as defective hearing and two scars rated as noncompensable. The January 2018 rating action on appeal, increased some disability evaluations, but the overall combined rating remained at 90 percent. A September 2019 rating action granted service connection for a psychiatric disability, and assigned a 30 percent disability evaluation, effective from April 26, 2019. This increased the Veteran's combined disability evaluation to 100 percent, effective from April 26, 2019. Thus, the Veteran met the schedular criteria for entitlement to TDIU throughout the appeal period. However, as total disability ratings for compensation based on individual unemployability are only assigned when the schedular evaluation is less than total, the Board's initial focus is entitlement to a TDIU for the period prior to April 2019. After careful review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against the award of a TDIU as explained below. With respect to the Veteran's education and work experience, the Board notes that the September 2017 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) reflects that the Veteran stopped working as an adjuster in June 2005. His employment history included several positions working as an adjuster for automobile companies since 1990. In the September 2017 VA Form 21-8940, the Veteran attributed his unemployability to his nonservice-connected chronic obstructive pulmonary disorder (COPD) and low back condition, as well as his service-connected shoulder disability. The VA examination reports of record consistently documented findings that the Veteran's service-connected disabilities did not impact his ability to perform sedentary work. Indeed, following a complete examination, the October 2017 VA examiner concluded that the service-connected left upper extremity conditions did not preclude sedentary employment. The examiner further noted that the Veteran reported that his nonservice-connected COPD imposed the greatest limitation on his ability to work. The remaining VA examination reports did not reflect that any of the other service-connected disabilities prohibited manual or sedentary labor. Aside from the September 2017 VA Form 21-8940, the Veteran has not submitted any additional statements or evidence in support of his claim. Additionally, in the December 2022 appellate brief, the Veteran's representative inaccurately stated that the Veteran has a service-connected spine disability. However, the brief did note that the service-connected left arm conditions render the Veteran unable to move his arm in a consistent manner, due to pain and limitation of motion, as to allow for sedentary work. The Board acknowledges that the Veteran reports to have been unemployed throughout the appeal period. The Board also acknowledges the assertions that he is unemployable due, in part, to his service-connected conditions. The Veteran is competent to describe the symptoms he experiences, to include the limitation of motion and pain in the left upper extremity. However, the competent medical evidence offering detailed and specific findings pertinent to the criteria governing the award of a TDIU is the most probative evidence in evaluating the functional impact of the Veteran's service-connected disabilities on his employability. As such, while the Board accepts the lay statements provided in support of this appeal, it relies upon the competent medical evidence related to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on the Veteran's employability. As indicated above, unemployed does not mean unemployable. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, supra. Thus, based on the above, the Board finds that the evidence does not persuasively show that the Veteran is incapable of performing the tasks that comport with his education and occupational experience due to his service-connected disabilities. Accordingly, the Board finds that the weight of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The Board reiterates that the sole fact that the Veteran is unemployed or has difficulty obtaining or following employment is not enough to warrant entitlement to a TDIU. The Board notes that the Veteran's ratings for his service-connected disabilities take into account the limitations and difficulties he experiences due to these disabilities. The evidence shows that the Veteran primarily attributes his unemployability to his nonservice-connected COPD and spine disability. While he does have physical limitations related to his service-connected left arm conditions, he has not been shown to be precluded from performing the tasks required in sedentary employment. Indeed, the VA examiners of record did not find that he was incapable of sedentary employment during the appeal period. Thus, in the present case, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. After considering the limitations related to the service-connected disabilities as shown by the credible lay and medical evidence, the record indicates the Veteran can perform work considering the symptomatology and functional impairment of service-connected disabilities alone, without regard to age or nonservice-connected disabilities. Thus, the Board finds that, prior to April 26, 2019, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As noted above, the Veteran has been in receipt of a 100 percent rating from April 26, 2019. A TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of SMC under 38 U.S.C. § 1114 (s) (SMC warranted where Veteran has a totally rated service-connected disability, as well as "additional service-connected disabilities independently ratable at 60 percent or more"). Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of section 1114(s)); Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Thus, pursuant to Bradley and Buie, VA has a duty to maximize benefits and therefore must consider the TDIU issue for the entire period covered by the claim to include whether a TDIU based on a single disability is warranted. The above evidence reflects that there is no single disability that causes unemployability. Therefore, the grant of TDIU would be based on impairment from several service-connected disabilities, and not solely a single disability. (Continued on the next page) As the Veteran has no single service-connected disability that is rated at 100 percent, and the Veteran's TDIU would be predicated on multiple service-connected disabilities, the rating criteria for SMC under 38 U.S.C. § 1114 (s)(1) have not been met at any point during the period under consideration in this appeal. Therefore, entitlement to a TDIU from April 26, 2019, is moot, as the Veteran is already in receipt of a combined schedular evaluation of 100 percent, effective April 26, 2019, and a TDIU is not warranted for a single disability and thus cannot assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s)(1). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.