Citation Nr: 24007964 Decision Date: 02/15/24 Archive Date: 02/15/24 DOCKET NO. 20-14 824 DATE: February 15, 2024 ORDER For the appellate period from May 14, 2018, to September 7, 2021, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. Between September 7, 2021, and September 18, 2021, the appeal seeking entitlement to a TDIU, having been rendered moot, is dismissed. For the appellate period from September 18, 2021, to September 7, 2022, entitlement to a TDIU is granted. For the appellate period from September 7, 2022, the appeal seeking entitlement to a TDIU, having been rendered moot, is dismissed. FINDINGS OF FACT 1. For the appellate period from May 14, 2018, to September 7, 2021, the evidence is in equipoise as to whether the Veteran had been rendered unable to maintain gainful employment due to his service-connected disabilities. 2. Between September 7, 2021, and September 18, 2021, as the Veteran is in receipt of a 100 percent combined schedular disability rating for his service-connected disabilities, and none of the Veteran's service-connected disabilities, alone, would warrant a TDIU, such that he would be entitled to SMC at the housebound rate, entitlement to a TDIU is rendered moot. 3. For the appellate period from September 18, 2021, to September 7, 2022, the evidence is in equipoise as to whether the Veteran had been rendered unable to maintain gainful employment due to his service-connected disabilities. 4. For the appellate period from September 7, 2022, the Veteran has been in receipt of a total 100 percent schedular disability rating and special monthly compensation (SMC) at the statutory housebound rate, there remain no questions of law or fact to be decided regarding the issue of entitlement to a TDIU and SMC. CONCLUSIONS OF LAW 1. For the appellate period from May 14, 2018, to September 7, 2021, and after resolution of all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met based on all of the Veteran's service-connected disabilities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 2. Between September 7, 2021, and September 18, 2021, the matter of the Veteran's entitlement to a TDIU has been rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 4.14, 4.16. 3. For the appellate period prior to June 29, 2017, and after resolution of all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met based on all of the Veteran's service-connected disabilities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 4. For the appellate period from September 7, 2022, the matter of the Veteran's entitlement to a TDIU has been rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to March 1987, from March 2003 to October 2004, and from April 2006 to May 2007. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, 529 (1993). A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); see Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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 includes consideration of a veteran's history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and, whether a veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that he is unable to secure or maintain employment due to his service-connected disabilities. Throughout the appeal period the Veteran was service connected for asthma (rated at 10 percent from May 16, 2008; 60 percent from April 30, 2019; 30 percent from September 18, 2021; and 100 percent from September 7, 2022), chronic migraine headache as residuals of traumatic brain injury (TBI) (rated at 50 percent from May 14, 2018), post-traumatic stress disorder (PTSD) and depressive disorder with TBI (rated at 50 percent disabling), vertigo as residuals of TBI (rated at 10 percent), tinnitus as residuals of TBI (rated at 10 percent), degenerative changes of the cervical spine (rated at 10 percent), degenerative arthritis of the lumbar spine (rated at 10 percent), chronic sinusitis (rated at 10 percent from September 7, 2021, and rhinitis (rated noncompensable from September 7, 2021). The Veteran's combined rating is 90 percent from May 14, 2018; 100 percent from September 7, 2021; 90 percent from September 18, 2021; and 100 percent from September 7, 2022, and the Veteran has met the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) throughout the entire appeal period. The Veteran was also awarded entitlement to special Monthly Compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), effective September 7, 2022. On May 14, 2018, the Veteran filed a claim for TDIU and indicated his service-connected disabilities such as his TBI, PTSD, and migraines affected his full-time employment on May 1, 2007. See VA Form 21-8940, Application for Increased Compensation Based on Unemployability. He reported that he last worked full-time on May 22, 2017, and became too disabled to work on that same date. He listed his last employment as a quality inspector from April 24, 2017, to May 22, 2017, working 40 hours a week and earning $1200 a month, and a slice technician from May 29, 2015, to August 26, 2015 working 40 hours a week and earning $2400 a month. He reported that he left his last job due to his disability and has tried to obtain employment since that time. He applied to become a driver on May 17, 2017. He completed four years of college in May 2016 with a bachelor's degree in kinesiology and exercise science and completed training as a military mechanic in 2010. He reported that he was let go from his last two jobs due to missing work related to his migraines. He explained that the cold and freezing working conditions triggered his migraines. Both of his prior jobs operated on a three point system in which each day missed was equal to a point and once he reached three points, he was fired. For the appellate period from May 14, 2018, to September 7, 2021, and from September 18, 2021, to September 7, 2022, entitlement to a TDIU is granted. For the reasons expressed below, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful occupation due to his service-connected disabilities for the appellate period from May 14, 2018, to September 7, 2021, and from September 18, 2021, to September 7, 2022. On review of the record, VA treatment records throughout the appeal period show that the Veteran had brief periods of employment with difficulty with sustaining full-time and part-time employment due to his headaches, mood, concentration, and coping mechanisms. On July 2018 VA PTSD examination, the examiner indicated that the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Regarding relevant occupational history, the Veteran reported that he currently was not working and last worked in June 2017 in a meat packing plant for one month. He suggested that the cold temperatures at work triggered his headaches. He did not have interpersonal issues and described himself as easy going, but he did not like "stupid people". He had concentration issues on the job and had been fired due to his headaches. His symptoms included mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. On July 2018 VA headaches examination, the Veteran reported that he went to the emergency room the other day for a left-sided headache that he had for 4 days. He reported that his headaches prevented him from working anywhere. He reported that he was overqualified with a degree in kinesiology and ended up working in places with a freezer in a meat packing plant that triggered his migraines. After a few days or weeks, he would have more problems with migraines and would not make it through the probation period due to the amount of time he missed from work. The examiner determined that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The headache condition impacted his ability to work. The Veteran described severe headache pain occurring randomly on potentially 3-4 days of the week. It was unpredictable which days he would have headaches he could 'tough through' and which days he would have headaches that required him to be in bed for several hours to a day. The examiner added that the Veteran would likely need flexible hours regarding potential employment due to this headache condition. In an August 2018 VA TBI examination, his TBI-related cognitive impairment and subjective symptoms included complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. No residual conditions attributable to TBI impacted his ability to work. In August 2018, a VA examiner noted the Veteran's reports of concentration issues and subjective memory deficits. On his past jobs, he had no interpersonal issues; however, he could not handle large groups, which was his major limitation in a workplace. On his October 2018 notice of disagreement, the Veteran reported that he was told by management that if he missed anymore days that he would be terminated. He claimed that his migraines were so bad at times that he had to lay down and take medication that would knock him out, which would cause him to be out of work for days. He stated that he could not find and keep gainful employment with his condition. On a February 2020 VA respiratory conditions examination, the examiner indicated that the Veteran's respiratory condition, diagnosed as asthma, impacted his ability to work due to wheezing and shortness of breath with even minimal exertion. He could not do activities of daily living or any type of manual labor. The examiner noted that the Veteran would be able to do sedentary activity. The examiner also noted that the Veteran had recurrent infections that were a complication of his asthma. On his March 2020 VA Form 9, the Veteran reported that his symptoms of TBI, PTSD, and migraine headaches occurred often, and his headaches were unpredictable. He indicated that he was not able to find a job that would give him flexible hours. During his March 2021 Board hearing, the Veteran reiterated his prior contentions. He also described having debilitating migraines in which he could miss three days of work with just one headache. He claimed that he would get pneumonia a lot that has been attributed to his asthma. He indicated that he had anger issues and trouble with getting along with his co-workers and supervisors. The cold working conditions were also hard on his asthma and migraines. His neck and his back conditions impacted his ability to move around and lift stuff. He claimed that his headaches, asthma, and PTSD had the biggest impact on his ability to work. He has not been able to work over the past 10 years. He explained an incident in which he had to go spend the night in the hospital because he became dizzy, and his equilibrium was out of whack. He suggested that he was always dizzy, which was hard to explain to someone he was trying to obtain employment. On September 2021 VA respiratory conditions examination, the examiner reported that the Veteran's asthma and shortness of breath impacted the Veteran's ability to work. On September 2021 VA PTSD examination, the examiner indicated that the Veteran's PTSD with TBI symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that after the last examination, he worked for six months delivering parts. He had not worked in the past three weeks. On September 2021 VA headaches examination, the examiner noted that when the Veteran had a headache, he had difficulty with focus and attention that impacted his ability to work. On September 2021 VA review of residuals of TBI examination, the Veteran had difficulty following a conversation, recalling recent conversations, and remembering names of new acquaintances. He exhibited impaired judgment in which for unfamiliar decisions, he occasionally was unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. He was occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. He occasionally got lost in unfamiliar surroundings and had difficulty reading maps or following directions. He had three or more subjective symptoms that mildly interfered with work such as difficulty with focus, "demand attention", and headaches. He exhibited occasionally impaired comprehension or expression, or both, of either spoken language or written language. The residual condition attributable to TBI impacted his ability to work due to difficulty with focus, memory, and attention. Based on the above, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of multiple service-connected disabilities for the appeal period from May 14, 2018, to September 7, 2021, and from September 18, 2021, to September 7, 2022. Specifically, the lay and medical evidence of record supports a finding that the Veteran's residuals of TBI including migraines, PTSD and major depressive disorder with TBI, and vertigo severely impact his ability to maintain substantially gainful employment. The Veteran has reported difficulties with debilitating and unpredictable headaches three to four days a week, mood, coping mechanisms, memory deficits, attention, concentration, or executive functions because of the service-connected disabilities. Furthermore, VA physicians and examiners have indicated that the Veteran's service-connected disabilities impacted his ability to maintain substantially gainful employment. Considering the entire record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a TDIU due to service-connected disabilities for the appeal period from May 14, 2018, to September 7, 2021, and from September 18, 2021, to September 7, 2022. 38 C.F.R. § 4.16(a). For the appeal period from September 7, 2021, to September 18, 2021, entitlement to a TDIU is moot. Effective September 7, 2021, to September 18, 2021, the Veteran is in receipt of a 100 percent combined schedular disability rating. Although 38 C.F.R. § 4.16 (a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent combined disability rating does not always render the issue of TDIU moot. VA's duty to maximize a Veteran's benefits includes consideration of whether his disabilities establish entitlement to SMC pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional service-connected disability or disabilities independently ratable at 60 percent or more; or, is permanently housebound due to service-connected disabilities. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). A TDIU rating can satisfy the need for a rating of 100 percent if it can be sustained by a single disability. Buie, 24 Vet. App. at 250-51 (2011). However, an award of a TDIU based on multiple service-connected disabilities considered one disability under 38 C.F.R. § 4.16(a) is not sufficient to serve as a service-connected disability rated as total for the purposes of establishing eligibility for SMC at the housebound rate. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019) (holding that a TDIU based on multiple service connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16(a), such as disabilities from a common etiology, may not be used to establish "a service-connected disability rated as total" for SMC eligibility pursuant to § 1114(s)). As previously discussed, according to his May 14, 2018, VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran claimed entitlement to TDIU due to multiple service connected disabilities, including TBI, PTSD, and migraines. During the period from September 7, 2021, to September 18, 2021, the Veteran is in receipt of a combined schedular disability rating of 100 percent. Such rating was based upon a combination of disabilities. Disabilities from a common etiology, included chronic migraine headache as residuals of TBI, PTSD and depressive disorder with TBI, vertigo as residuals of TBI, and tinnitus as residuals of TBI. He was also service connected for asthma, degenerative changes of the cervical spine, degenerative arthritis of the lumbar spine, chronic sinusitis, and rhinitis. Notably, to qualify for the housebound rate, multiple disorders that would qualify as "one disability" under 38 C.F.R. § 4.16 (a) may not serve as a disability rated as total for purposes of establishing eligibility for the housebound rate. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019). (reaching this holding in the context of special monthly compensation at the housebound rate under the similarly phrased statutes and regulations). As the evidence reflects that the Veteran's purported unemployability during the rating period from September 7, 2021 to September 18, 2021, was due to a combination of service-connected disabilities, consideration of SMC at the housebound rate is not warranted, as none of the exceptions recognized in Bradley and Buie apply in this case, or in fact have been alleged to have arisen in this case as combining the service connected disabilities, for SMC purposes is barred pursuant to Youngblood, and it has not been argued that any single service-connected caused unemployability. For the above discussed reasons, the Board finds that the grant of a combined scheduler 100 percent disability rating from September 7, 2021, to September 18, 2021, renders moot the issue of entitlement to a TDIU from September 7, 2021, to September 18, 2021, leaving no question of law or fact for the Board to decide on this issue. See 38 U.S.C. § 7104; Sabonis, 6 Vet. App. at 430. For the appeal period from January 9, 2023, entitlement to TDIU is moot. During the course of this appeal, in a January 2023 rating decision, the AOJ granted a 100 percent total disability rating for the service-connected asthma, and also granted SMC at the statutory housebound rate, from September 7, 2022. This is the maximum SMC provided by the rating schedule for this Veteran's disabilities. As such, based upon AOJ's actions in January 2023, any question of entitlement to a TDIU from September 7, 2022, has been rendered moot because there was not a "less than total" rating during this period. See 38 C.F.R. § 4.16; See Bradley, 22 Vet. App. at 294; Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Crohe, L. 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.