Citation Nr: 1815284	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  09-11 974	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) for accrued benefits' purposes.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Appellant-widow



ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1954 to March 1956. 

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an October 2007 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction now lies with the St. Petersburg, Florida, RO; that office certified the appeal to the Board.  The Veteran died in 2011, during the pendency of this appeal.  The RO and the Board consequently since have recognized his widow as the substitute claimant for the purpose of processing this appeal to completion.

In December 2013, in support of this claim, the appellant-widow testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a "Travel Board hearing".  A transcript of the hearing is of record.

The Board has remanded this claim twice previously.  Initially, in February 2014, the Board remanded this TDIU claim along with § 1151 claims for bilateral eye damage and a right leg disability for further development.  In January 2016, the Board again remanded this TDIU claim since "inextricably intertwined" with the bilateral eye damage claim, finding the RO had not issued a Statement of the Case (SOC) for the bilateral eye damage claim after the appellant had filed a timely Notice of Disagreement (NOD) regarding that issue.  See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999) (indicating the appropriate disposition in this circumstance is to remand, rather than merely refer, the claim).  The required SOC for the bilateral eye claim subsequently was provided in October 2017; however, the appellant-widow did not then, in response, also file a timely Substantive Appeal (VA Form 9 or equivalent statement) to, in turn, complete the steps necessary to 

perfect her appeal of this other claim to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2017) (setting forth requirements and time limits for perfecting an appeal to the Board).  Thus, only this accrued benefits TDIU claim is still at issue.  The required compliance with the previous remand directives has been completed, allowing the Board to adjudicate this remaining claim.  See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

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

The Veteran did not have a service-connected disability or any other compensable disability when he died. 


CONCLUSION OF LAW

The criteria are not met for a TDIU. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.16, 4.18, 4.19, 4.25 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the appellant nor her representative has raised concerns with the duty to notify.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Regarding the duty to assist, treatment records and required medical opinions for other issues that could have caused unemployability were obtained for the record.  The Board notes, however, the Veteran did not have a compensable disability for VA purposes that would cause him to be unable to obtain or maintain substantially gainful employment.  Without any evidence of a VA compensable disability that could have caused unemployability, a medical opinion regarding that question was not required.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

II. TDIU

The Veteran (or, here, other claimant) may be awarded a TDIU upon a showing that he or she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities.  See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).

To qualify for a TDIU, the evidence must show one of the following: (1) a single disability rated as 100-percent disabling; or (2) the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability or disabilities - provided that, if there is just one disability, it is rated as at least 60-percent disabling, or, if more than one disability, at least one is rated as at least 40-percent disabling and the combined rating (considering all of the disabilities' ratings in combination) is at least 70 percent.  38 C.F.R. § 4.16(a).  

Disabilities will be considered one collective disability for the purpose of determining whether § 4.16(a) rating requirements are met for disabilities affecting one or both upper extremities or lower extremities, disabilities resulting from a common etiology or single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war (POW). 38 C.F.R. § 4.16(a)(1)-(5).

Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  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).  In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

Unfortunately, in this particular instance, a review of the record shows the Veteran had no service-connected or other compensated disabilities for VA purposes at any time.  To this end, he and the appellant have only pursued two claims besides for a TDIU; § 1151 claims for a right leg disability and for bilateral eye damage claimed to have occurred because of VA treatment.  The Board denied the right leg disability claim in the February 2014 decision.  The appellant-widow was provided an SOC in regard to the bilateral eye damage claim in October 2017 and, as already explained, did not in response submit a Substantive Appeal within the required sixty days of the SOC to, in turn, complete the steps necessary to perfect his appeal of that other claim to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.302, etc. (2017).  Accordingly, there are no pending claims that would provide entitlement to compensation and no current disabilities that are service connected or compensated for VA purposes.  Without a service-connected disability, this derivative TDIU claim must be denied both on a schedular and extra-schedular basis.  38 C.F.R. § 4.16(a), (b).  


ORDER

This claim of entitlement to a TDIU for accrued benefits' purposes is denied. 




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs