Citation Nr: 1804123 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-24 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating on the basis of individual unemployability (TDIU), for accrued benefits purposes, for the period from October 19, 2015, to December 27, 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Navy from August 1962 to February 1966, March 1968 to June 1968, and March 1977 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. That decision denied entitlement to a TDIU and to an evaluation in excess of 70 percent for a specified trauma and stressor-related disorder. The Veteran passed away on April 6, 2016, and the Appellant filed a request for substitution of claimant upon the death of a claimant in April 2016 with respect to the appeal for entitlement to a TDIU. After the initial denial of the Veteran's claim for an entitlement to a TDIU, an April 2016 rating decision granted service connection for malignant mesothelioma and assigned a 100 percent schedular evaluation effective December 28, 2015. The Board recognizes that the assignment of a 100 percent schedular evaluation does not necessarily render moot a claim for entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). However, the April 2016 rating decision that granted the 100 percent evaluation for malignant mesothelioma also awarded special monthly compensation pursuant to 38 U.S.C. § 1114(s) given that the Veteran had also been assigned a 70 percent evaluation for a psychiatric disability. As such, beginning on December 28, 2015, the Veteran's VA benefits were already maximized and the award of a TDIU from that date would not result in any additional discernable benefit. Therefore, the Board finds that entitlement to a TDIU for the period beginning December 28, 2015, is moot. 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). FINDING OF FACT From the date of his claim, October 9, 2015, to December 27, 2015, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU from October 9, 2015, to December 27, 2015, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1155, 5107(b), 5121 (2012); 38 C.F.R. § § 3.102, 3.340, 3.341, 3.1000, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Standard Accrued benefits are periodic monetary benefits, other than insurance and servicemen's indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). "[A] pending claim" is defined as "an application, formal or informal, which has not been finally adjudicated." 38 C.F.R. § 3.160(c). Generally, claims for accrued benefits must be adjudicated based on evidence that was physically present or constructively present in a veteran's claims folder when he died. 38 U.S.C. § 5121(a) (2012); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009); Ralston v. West, 13 Vet. App. 108, 113 (1999). Specifically, in a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death. There is an exception for outstanding service treatment records or VA treatment records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). Here, the pending claim before VA at the time of the Veteran's death was for entitlement to a TDIU. The claim was received on October 9, 2015. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2017). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19 (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). VA regulations place responsibility for the TDIU determination on VA, and a medical examiner's opinion as to the employability of a particular claimant is not binding on VA. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In deciding whether a TDIU may be awarded, an adjudicator must first evaluate the severity of the Veteran's service-connected disabilities. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Throughout the entire period currently on appeal, the Veteran has had a combined rating of 70 percent or more and at least one disability rated at 40 percent or more. Accordingly, the Board may consider whether the Veteran meets the criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Analysis Prior to his death, the Veteran contended that his stress-related psychiatric disorder prevented him from being able to secure and follow gainful employment. As noted above, he was assigned a 70 percent evaluation for this disability for the entire appellate period. For that period, the Veteran was also assigned a noncompensable evaluation for bilateral hearing loss and neck and appendectomy scars, a 10 percent evaluation for bilateral tinnitus, and a 10 percent evaluation for coronary artery disease. As the Veteran had at least one service-connected disability that surpassed the 60 percent threshold set forth in 38 C.F.R. § 4.16(a), the Board can proceed to adjudicating the merits of the claim for a TDIU for accrued benefits purposes in the first instance. Shortly before the Veteran's claim for a TDIU, he attended an August 2015 VA psychological examination and was accompanied by the Appellant. At that time, the Veteran reported symptoms of intrusive thoughts and memories, feelings of guilt and self-blame, and tearfulness. The examiner also stated that the Veteran presented with symptoms of verbal and physical aggression or pushing, an inability to cook or drive, memory loss, defensiveness, disorganized behavior, confusion, and irregular speech pattern. The Veteran stated that he had a strained relationship with his wife at that time and that his interests included caring for his two dogs and checking the mail. Upon examination, the VA examiner reported that the Veteran was easily engaged but had limited eye contact and displayed deficits in his memory. The Veteran also reportedly demonstrated delayed cognitive processing with extensive periods of silence, prompting the examiner to repeat questions. Although not completely clear, the examination report appears to attribute the Veteran's symptoms of aggression, confusion, and pushing or physical outbursts to a separate psychiatric disability. She then provided a diagnosis of neurocognitive disorder-unspecified. The examiner indicated that it was possible to differentiate these symptoms from his service-connected stress disorder. This VA psychologist also stated that the Veteran's psychological diagnoses caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Of particular relevance here, the VA examiner stated that she was not able to resolve the issue of differentiating portions or amounts of levels of impairment associated with either psychological diagnosis at that time, but she stated that the Veteran's non-service connected neurocognitive disorder "equally impairs the veteran's social/occupational and daily functioning." After the Veteran filed his claim for entitlement to a TDIU, VA secured an addendum opinion from a different VA psychologist regarding the impact of the Veteran's service connected psychiatric disability on his ability to work. In a somewhat vague November 2015 report, the reviewing psychologist indicated that the symptoms the Veteran was experiencing relating to his service-connected psychological disability "would not have a negative impact on his work functioning" but that the symptoms attributed to his cognitive disorder "would have a significant negative impact on his occupational functioning." In his January 2016 notice of disagreement, the Veteran argued that his PTSD-related symptoms were "one and the same" as those attributed to his cognitive impairment, stating that veterans with PTSD are twice as likely to develop dementia or a cognitive disorder. The Board does not find any evidence that the Veteran had the medical knowledge, experience, or training to provide a competent opinion regarding the specific functional effects or symptoms attributable to a stress-related disability as opposed to those of a cognitive disability. There is also no evidence that he was able to provide a competent medical opinion regarding the likelihood that PTSD or any other stress-related disability might cause or exacerbate a cognitive disorder. See Jandreau v. v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board also finds it significant that the VA psychologist who provided the November 2015 addendum opinion appears to largely rely on yet contradict the findings of the August 2015 in-person VA examiner. Specifically, as noted above, the psychologist who personally evaluated the Veteran in August 2015 explicitly stated that the Veteran's cognitive impairment equally impaired the Veteran's social, occupational, and daily functioning as his service-connected psychological disorder. The Board recognizes that the opinions of a medical or psychological examiner are not outcome determinative in a claim for entitlement to a TDIU. See Moore, supra. However, the Board finds it significant and highly probative that the only psychologist who personally examined the Veteran found his two psychological disabilities to equally impair his ability to function in a social, occupational, and daily environment. As the symptoms attributed to these disabilities include physical aggression, difficulty maintaining a conversation or answering questions without prompting, and an inability to tend to daily activities independently, the Board finds that these symptoms prevented the Veteran from securing or following a substantially gainful occupation from October to December 2015. Although there is little evidence of record to quantify the impact of the Veteran's physical service-connected disabilities, the assignment of 10 percent for both tinnitus and coronary artery disease indicate that the Veteran's ability to work was additionally impaired by the functional effects of these physical disabilities. Resolving all reasonable doubt in the Veteran's favor, the Board therefore finds that the Appellant's claim for entitlement to a TDIU for accrued benefits purposes from October 9, 2015, to December 27, 2015, must be granted. ORDER A TDIU, for accrued benefits purposes, for the period from October 9, 2015, to December 27, 2015, is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs