Citation Nr: 19117136 Decision Date: 03/08/19 Archive Date: 03/08/19 DOCKET NO. 15-15 854 DATE: March 8, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes is granted. FINDINGS OF FACT 1. The Veteran died in August 2013; prior to his death he submitted a claim of entitlement to TDIU. 2. The appellant filed an original death claim for accrued benefits in September 2013, within one year of the Veteran’s death.   3. The Veteran was granted service connection for diabetic nephropathy associated with diabetes mellitus type II with erectile dysfunction, rated 60 percent disabling; anxiety disorder, not otherwise specified (NOS), rated 30 percent disabling; right Charcot foot, rated 30 percent disabling; diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the right lower extremity associated with diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; tinnitus, rated 10 percent disabling; hypertension associated with diabetes mellitus type II with erectile dysfunction, rated 10 percent disabling; bilateral hearing loss, rated noncompensable; and skin ulcer, status post amputation second right toe associated with diabetes mellitus type II with erectile dysfunction, rated noncompensable. His combined rating was 90 percent. 4. Service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are met for accrued benefits purposes. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107, 5121 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.1000, 4.16, 4.18, 4.19 (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1968 to August 1970. He died in August 2013 and the appellant claims as a surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested a Board videoconference hearing on a May 2015 Form 9 appeal. She was scheduled for a hearing in July 2018. However, the appellant failed to appear for her hearing, and has not since requested a new hearing. Accordingly, the appellant’s hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2018). The Board notes that the appellant’s appeal also initially included an issue of entitlement to service connection for the cause of the Veteran’s death. This claim was denied in the above-referenced November 2013 rating decision. The appellant thereafter filed a timely notice of disagreement as to this issue in January 2014. However, the RO continued the denial of entitlement to service connection for the cause of the Veteran’s death in a March 2015 statement of the case. The appellant subsequently filed a timely VA Form 9 in May 2015, in which she checked the box in section 9.B. and specifically only requested an appeal of the TDIU issue. Therefore, the Board finds that the claim of service connection for cause of the Veteran’s death is not on appeal. TDIU Although the Veteran’s claim terminated with his death, the regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased Veteran’s claim for VA benefits by submitting a timely claim for accrued benefits. 38 C.F.R. § 5121; see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits is separate from the claim for TDIU filed by the Veteran prior to his death, the accrued benefits claim is derivative of the Veteran’s claim and the appellant takes the Veteran’s claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones, 146 F.3d 1296 (Fed. Cir. 1998). Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years. 38 U.S.C. § 5121(a); 38 C.F.R. 3.1000(a) (in effect on or after November 27, 2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, “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). It was explained that “a consequence of the derivative nature of the surviving spouse’s entitlement to a Veteran’s accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application.” Id. at 1300. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran met the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU on a schedular basis, as service connection was in effect for diabetic nephropathy associated with diabetes mellitus type II with erectile dysfunction, rated 60 percent disabling; anxiety disorder, NOS, rated 30 percent disabling; right Charcot foot, rated 30 percent disabling; diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the right lower extremity associated with diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II with erectile dysfunction, rated 20 percent disabling; tinnitus, rated 10 percent disabling; hypertension associated with diabetes mellitus type II with erectile dysfunction, rated 10 percent disabling; bilateral hearing loss, rated noncompensable; and skin ulcer, status post amputation second right toe associated with diabetes mellitus type II with erectile dysfunction, rated noncompensable. His combined rating was 90 percent. 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 disabilities shall be rated totally disabled. The central inquiry is “whether a veteran’s service- connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. For reasons and bases discussed below, the Board finds that the evidence supports a finding that the Veteran’s service-connected disabilities precluded him from securing substantially gainful employment. Initially, the Board recognizes that the Veteran, who was 63 years old when he died, reported on his January 2013 claim for TDIU that he last worked as a railroad mechanic in 2001. He further reported that his service-connected anxiety disorder and diabetic nephropathy precluded him from obtaining substantial and gainful employment. He also reported during a September 2011 VA examination that his diabetes and complications from the diabetes affected his employment in that his equilibrium and balance was affected due to the neuropathy. He also needed a cane to walk and had limited mobility due to the neuropathy and he had to have his legs elevated when sitting. He further reported that his right Charcot foot affected his employment in that he had difficulty with walking, balance, and pain. Additionally, during an October 2010 VA audiological examination, he reported that his bilateral hearing loss and tinnitus affected his employment in that he had difficulty localizing sounds, hearing high-pitched alerting devices, and communicating with others. The fact that the Veteran retired due to other reasons is not controlling. The issue is whether service connected disabilities precluded obtaining and retaining substantially gainful employment. Here, the Veteran had hearing loss and tinnitus that limited his ability to communicate. He had a psychiatric disorder that impacted occupational ability. He had a Charcot foot that limited mobility. There was lower extremity neuropathy which further limited his ability to ambulate or stand. We also note that he had diabetes mellitus rated as 60 percent disabling and had a combined rating of 90 percent. The combined effect of the service connected disabilities limited the ability to hear, communicate, deal with stress and other people, ambulate and stand coupled with significant impairment due to the diabetes mellitus. It is the opinion of this agency that prior to death, service connected disabilities rendered him unable to obtain and retain substantially gainful employment. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel