Citation Nr: 1800880 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 14-35 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) on the basis of substitution. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1953 to June 1956. The Veteran died in September 2014, and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant requested substitution for the claim pending at the time of the Veteran's death. In October 2014, the RO recognized the appellant as a valid substitute claimant in place of the Veteran for the issue on appeal. Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending on the date of the Veteran's death. The issue on appeal has been recharacterized on the title page to reflect substitution. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The Board notes that additional VA medical records have been associated with the VBMS file since the most recent statement of the case. However, as the Board is either granting or remanding the benefits sought on appeal, there is no prejudice to the Veteran in proceeding with adjudication of the claims at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran met the schedular requirement for TDIU, and his service-connected disability rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU on a substitution basis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 3.1000, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, 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; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is entitled to TDIU on a substitution basis. At the time of his death, the Veteran was service-connected for degenerative arthritis and synovitis of the right knee with limitation of flexion, residuals of post-operative meniscectomy. He was assigned an evaluation of 60 percent for that disability; therefore, he met the schedular criteria for TDIU. Accordingly, the remaining question is whether he was unable to secure or follow a substantially gainful occupation as a result of his service-connected right knee disability. In his August 2012 Application for Increased Compensation Based on Individual Unemployability, the Veteran had reported that he was last employed full-time in 1993, which was the date he became too disabled to work. His last employment was as a self-employed operator of a truck, which was leased through Tri-State Motor Transit. He indicated that he was unable to pass a physical examination for his employment and that his physician, Dr. B (initials used to protect privacy), indicated that he could no longer work in that field. The Veteran also indicated on his application that he had a high school level education and completed training in heavy equipment operations from 1960 to 1961, which was the only training listed on the application. In a June 2013 statement, the Veteran had reported that he continued to have "falling episodes" at home when he tried to get around for daily living activities. He also reported falling in a retail parking lot, yard, bedroom, and garage. He indicated that he had a blood clot under his prosthetic knee, which was very unstable. In a July 2013 VA examination report, the examiner noted that the Veteran had a total knee replacement in 1993. The procedure had caused his right lower extremity to be shorter than the left, resulting in him wearing shoe lifts. The Veteran also reported having pain without specific flare-ups and indicated that he stayed off of his knee except for meals and going to the bathroom. With regard to functional loss and impairment, the examiner noted that the Veteran had less movement than normal, weakened movement, pain on movement, swelling, instability of station, and disturbance of locomotion. He also needed a walker to assist with locomotion. The examiner found that the Veteran's knee disability impacted his ability to work. Specifically, the Veteran would have been unable to lift even 5 pounds if it included bending his knees; he could only walk about 50 feet with the aid of his walker; and he could walk about 30 minutes and stand for a total of 20 minutes in an 8 hour day, but only for 5 minutes at a time. The examiner commented that the Veteran was essentially non-weight bearing on the right lower extremity. In an October 2013 Notice of Disagreement (NOD), the appellant indicated that the Veteran was unable to get out or go anywhere due to the pain and instability of his knee. Even with the assistance of the walker, the Veteran experienced pain when walking. His pain also prevented him from sleeping at night, so he slept at times during the day. The appellant also noted that the Veteran needed assistance with taking showers and dressing because he was unable to do these things himself. He was only able to participate in therapy, watch television, use the computer to communicate with family, and walk briefly in the house with the assistance of a walker. In a June 2014 statement, the appellant's representative noted that the Veteran had previously worked in construction and road trucking. She noted that sedentary work typically involved the use of computers or other such devices, but that the Veteran was not educationally or vocationally trained to perform such work. She also explained that sedentary work involved a certain amount of walking and standing, in addition to other types of movement, with which the Veteran would have difficulty. VA medical records also documented the Veteran's difficulties due to his right knee disability. A June 2013 record revealed that he had fallen on his knee when walking and that he was unable to bear weight on his knee or fully extend it. In an August 2013 record, it was noted that the Veteran reported having severe knee and hip pain symptoms that prevented him from standing or walking. He also reported having difficulty getting in and out of his bathroom because it was too small for his walker. The record does not show that the Veteran was receiving or even applied for Social Security Administration (SSA) benefits prior to his death. In this regard, a June 2013 response from the SSA National Records Center indicated that no medical records existed with the agency and that the Veteran had not applied for disability benefits. Thus, any further efforts to obtain such records would be futile. In this case, the evidence clearly indicates that the Veteran was limited in his ability to perform physical activity due his service-connected right knee disability. The evidence also shows that he would have had difficulty in obtaining and performing sedentary employment. In this regard, the July 2013 VA examiner concluded that the Veteran's knee disability impacted his ability to work. Specifically, the examiner noted that he was unable to walk or stand for periods of time, which would still be required of the Veteran even for sedentary employment. The medical and lay evidence of record also shows that the Veteran had difficulty going anywhere outside of his home without assistance and that he even required assistance with activities of daily living such as showering or dressing. Thus, the evidence demonstrates that the Veteran would have had difficulty performing sedentary employment, given his inability to perform activities of daily living without assistance. Furthermore, the Veteran's prior work experience consisted mainly of physical labor and did not involve sedentary employment. Moreover, he did not have any training or higher education that would have provided him with the skills necessary to obtain sedentary employment or perform the duties typically associated with such employment. The Board acknowledges that, in some of the VA clinical records where the Veteran had reported symptoms associated with his right knee disability, he also reported that those symptoms were due to his hip disability, which was not service-connected. While the Board may not consider the effects of nonservice-connected disabilities on his ability to function, the record contains ample evidence of the impairment resulting from the Veteran's service-connected right knee disability. Based on all of the evidence of record and resolving all reasonable doubt in favor of the appellant, the Board finds that the Veteran's service-connected right knee disability precluded substantially gainful employment. Accordingly, entitlement to TDIU is warranted on a substitution basis. ORDER Entitlement to TDIU is granted on the basis of substitution, subject to the law and regulations governing the payment of monetary benefits. REMAND The record shows that the appellant submitted a notice of disagreement in March 2017 in which she appealed the March 2016 rating decision denying service connection for the cause of the Veteran's death. However, it does not appear that the RO has started to process that appeal. Thus, a remand is required for the AOJ to issue a statement of the case (SOC). See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The AOJ should issue a statement of the case addressing the issue of entitlement to service connection for the cause of the Veteran's death. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless she perfects an appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs