Citation Nr: 20003166 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 08-12 665 DATE: January 14, 2020 ORDER Effective May 18, 2007, total disability based on individual unemployability (TDIU), on an extraschedular basis, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The weight of the probative evidence of record shows that the Veteran was unable to secure and maintain substantially gainful employment, consistent with his education and occupational experience as a result of his service-connected disabilities since May 18, 2007. 2. The Veteran died in August 2016 of congestive heart failure and cardiomyopathy. 3. At the time of his death, the Veteran was service connected for lumbosacral strain with root compression due to spondylolisthesis; sensory polyneuropathy of the right and left lower extremities, tinnitus, and bilateral hearing loss. 4. The Veteran’s service-connected disabilities did not cause or materially contribute to his death and the causes of death are not otherwise related to service. 5. As of this decision, the Veteran has been in receipt of TDIU since May 18, 2007. The Veteran was not rated by VA as totally disabled for a continuous period of at least 10 years preceding death; since release from active duty service and for at least 5 years immediately preceding death; and was not a former prisoner of war. CONCLUSIONS OF LAW 1. Since May 13, 2007, the criteria for entitlement TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 3. The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1954 to July 1956. The Veteran passed away in August 2016. The appellant is the Veteran’s surviving spouse. For purposes of the TDIU claim now before the Board, the appellant has been named as the substitute claimant. The case is on appeal from a July 2007 rating decision. In a July 2016 rating decision, the regional office (RO) granted TDIU, effective April 1, 2009. As this represents a partial grant of the benefit sought, the issue of entitlement to TDIU prior to April 1, 2009 is still on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). After the Veteran passed away, the appellant filed a claim for DIC benefits. In a February 2017 rating decision, the RO denied service connection for cause of death. In January 2019, the RO issued a statement of the case (SOC) adjudicating claims of DIC benefits for service connection for cause of death and under 38 C.F.R. § 1318. In February 2019, the appellant filed a substantive appeal with respect to both issues. The Board also notes that in February 2019, the Board remanded a claim of special monthly compensation at the aid and attendance rate for further development. It does not appear that a Supplemental Statement of the Case (SSOC) has yet been issued on this case. Thus, this claim has not yet returned to the Board. In November 2019, the Veteran’s attorney submitted an opinion regarding TDIU and waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). The remainder of the evidence added to the claims file since the January 2019 SOC and April 2019 supplemental SOC is not pertinent to the claims currently before the Board. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Where the combined rating is less than that set out in 38 C.F.R. § 4.16(a), the Board must first refer the claim to the Director of Compensation Service. 38 C.F.R. § 4.16(b). The Board is not bound by the Director’s decision, but rather conducts a de novo review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). 1. Entitlement to TDIU prior to April 1, 2009 The appellant claims that the Veteran was unable to work due to service-connected disabilities prior to April 1, 2009. Pertinent to this inquiry, the Board notes that the Veteran has been service-connected for lumbosacral strain, rated as 20 percent disabling prior to April 1, 2009; left lower extremity polyneuropathy, rated as 20 percent disabling prior to April 1, 2011; and bilateral hearing loss, rated as noncompensable, for the entire claims period. Additionally, he has been service-connected for right lower extremity polyneuropathy, rated as 10 percent disabling, since August 15, 2007; and tinnitus, rated as 10 percent disabling, since August 22, 2011. The combined rating for the Veteran’s service-connected disabilities was 20 percent, effective August 1, 1956; 40 percent, effective July 13, 2006; and 50 percent, effective August 15, 2007. 38 C.F.R. § 4.25. Therefore, the schedular percentage criteria for TDIU prior to April 1, 2009 were not met. 38 C.F.R. § 4.16(a). Accordingly, the Board will consider the claim for entitlement to TDIU prior to April 1, 2009 on an extraschedular basis. Additionally, the Board will consider entitlement to TDIU based on polyneuropathy in the lower extremities and tinnitus only for the periods during which the Veteran was service-connected for those disabilities. It has also been reported that the Veteran had nonservice-connected disabilities, including diabetes mellitus, chronic kidney disease, congestive heart failure, and a history of heart valve problems. In July 2006, as memorialized in a VA treatment record, the Veteran reported that his right thigh numbness was getting worse. At a May 2007 VA examination, the Veteran reported that he was seen at VA for his back disorder whenever necessary. For the prior five years, he did not complain about his back much, until recently. The Veteran noted that he underwent a magnetic resonance imaging (MRI) scan in December 2006. The examiner explained that the MRI showed evidence of nerve root irritation affecting the right lower extremity. The Veteran reported flare-ups of his back symptomatology every four days, which lasted up to one hour at a time. He reported that his back would affect his occupation, but that he was retired. He sat for six hours in a nine-hour day, walked one hour per day, and laid on his back for the rest of the time. He reported being able to sit for 45 minutes, stand for one hour, drive for one hour, walk 30 yards, and lift 10 pounds occasionally, and five pounds frequently. He reported being unable to push and pull a vacuum, having pain when bending at the waist, and being unable to squat. In August 2007, the Veteran noted complaints of right leg numbness with standing still or sitting too long. He also noted some intermittent numbness in the left lower extremity. In a December 2013 application for TDIU, the Veteran reported that he last worked in July 1996 at a utility locating and mapping company. He noted that he had an undergraduate degree in business administration and a masters degree in mathematics. He reported that all of his service-connected disabilities prevented him from working. A report of income from the Social Security Administration (SSA) details the Veteran’s income by year. The Veteran made less than $10,000 per year from 1990-1994, had no SSA income from 1995-1998 or from 2003-2012, and made less than $100 per year in 1999, 2000, 2001, and 2002. In a March 2014 private opinion, Dr. D.M. opined that the Veteran was totally precluded from all substantially gainful employment due to his lumbar spine and bilateral lower extremity radiculopathy since 2005. He explained that this combination of lumbar pathology and associated lower extremity symptoms prevented functioning even in a sedentary position. In support of his opinion, Dr. D.M. noted an August 2006 medical record which indicated that abnormal electromyography (EMG) had not ruled out right S1 nerve root irritation and that there was no evidence of peripheral neuropathy. He also cited to the December 2006 MRI results and the findings of the May 2007 VA examination. During a phone conversation with the Veteran, Dr. D.M. reported that the Veteran stated he was forced to retire in 1989 because of his lumbar spine and lower extremity symptoms. After he retired, he started his own company dealing with underground utilities. The Veteran could come and go as he pleased and sit, stand, or walk as he pleased. However, he was forced to retire in 2005 because of his inability to check on the various job sites due to increasing symptoms associated with his spine and lower extremities. Dr. D.M. also noted that that imaging showed that spondylolisthesis progressed from 11 millimeters in December 2006 to 15 millimeters in December 2010. Associated with this progression, the Veteran’s lower extremity symptoms progressed as well. Dr. D.M. then opined that the Veteran was unable to establish or maintain gainful employment since 2005 because the Veteran gave up running his company at that time due to his symptoms. This was his optimal job as he could sit, stand, or walk whenever he needed. In September 2015, the Veteran’s attorney argued that the Veteran back and leg pain prevented him from sitting down a majority of the day and in previous occupations the cycle of constantly standing to relieve the pain eventually became a performance issue. In November 2018, the Director of Compensation Service denied an extraschedular rating for TDIU. In preparation for a recommendation, a report was issued by the Veterans Service Center Manager. The report noted the findings as to functional limitations from the May 2007 VA examination. The report also cited to an August 2007 treatment note which recorded the Veteran’s reports of right leg numbness with standing or sitting too long, intermittent numbness in the left leg, and significant back pain with standing. The Veterans Service Center Manager recommended that the Director grant TDIU on an extraschedular basis from August 15, 2007, the first date the evidence of record noted difficulty with both prolonged standing and sitting. However, the Director declined to grant TDIU on an extraschedular basis. The appellant submitted another opinion from a vocational consultant in November 2019. The consultant opined that the Veteran had been unable to establish or maintain gainful employment since at least July 2006 due to his lumbar spine and right lower extremity disabilities and also unable to establish or maintain gainful employment due to his left lower extremity disability since August 2007. She noted the August 2006 treatment note recording the Veteran’s report of lower extremity numbness the previous few months. The consultant also relied on the findings regarding functional limitations as recorded in the May 2007 VA examination. Based on the evidence of record, the Board finds that the Veteran is entitled to TDIU from May 18, 2007. This is the earliest date on which the credible and detailed evidence of record shows significant functional impairment from the lumbar spine and lower extremity disabilities. Swain v. McDonald, 27 Vet. App. 219 (2015). In reaching this conclusion, the Board has considered different possible effective dates for TDIU ranging from July 13, 2006, at which time the Veteran was service-connected for sensory polyneuropathy in the right, but not left, lower extremity, to August 15, 2007, at which time the Veteran was service connected for sensory polyneuropathy in both lower extremities. The Board has found the Veterans Service Center Manager’s approach in reaching a conclusion regarding employability useful in assessing the claim. The Veterans Service Center Manager based his opinion that the Veteran was unable to work based on the disabilities for which the Veteran was service-connected during each period. Further, he cited to functional limitations recorded on examination in May 2007 and August 2007. The Veterans Service Center Manager then recommended that TDIU be granted on an extraschedular basis from August 15, 2007, the first date of record on which difficulty on both prolonged standing and sitting was noted. The Board notes, however, the difficulty with standing more than an hour and sitting more than 45 minutes was also noted at the May 2007 examination. It appears that as of May 18, 2007, the date of the May 2007 examination, the Veteran was prevented from substantially gainful employment due to the reported functional impacts of his service-connected disabilities. In November 2019, the vocational consultant opined that the Veteran had been unemployable since July 2006 due to his lumbar spine and right lower extremity neuropathy. In support, the vocational consultant relied on the Veteran and appellant’s overall descriptions of functional ability and an August 2006 treatment note recording numbness in the lower extremities over the past few months. Notably, the same vocational consultant in March 2014 opined that the Veteran had been unemployable since 2005 due to his lumbar spine and bilateral lower extremity neuropathy. The Board finds that the March 2014 and November 2019 opinions as to TDIU are not well-reasoned, and not entitled to significant probative value. Both opinions rely heavily on the Veteran’s lay statements of record to establish a date upon which the Veteran’s disabilities rendered him unemployable. However, the Veteran has provided inconsistent statements throughout the record describing his employment history. For example, the Veteran informed the March 2014 physician that he retired from work in 1989, but started his own company after that, where he worked until 2005. In his December 2013 claim for TDIU, he stated that he last worked in July 1996 at a utility locating and mapping company. Further, the Veteran’s SSA records report minimal SSA income after 1990 despite the Veteran’s statements that he worked at his own company until 2005. In light of the inconsistences throughout the record, the Board cannot find the Veteran’s lay statements regarding his employment history to be credible. Further, in addition to the Veteran’s lay statements regarding employment, the November 2019 opinion cited only an August 2006 medical treatment record when discussing employability prior to May 8, 2007, which indicates that there was numbness in both lower extremities. However, the effective date for left lower extremity polyneuropathy is August 15, 2007, after the date of that treatment record; accordingly, the Veteran’s left lower extremity symptoms may not be taken into consideration when assessing employability prior to August 15, 2007. Further, the August 2006 medical treatment record does not reveal what, if any, functional limitations the Veteran experienced during this period. Because the March 2014 and November 2019 opinions cited little other evidence in the claims file aside from the Veteran’s lay statements to support their conclusions that the Veteran was unemployable prior to May 18, 2007, and because the Board does not find the Veteran’s lay statements regarding his employment history to be credible, the Board does not afford the March 2014 and November 2019 opinions significant probative value. For these reasons, entitlement to a TDIU on an extraschedular basis is granted from May 18, 2007, but no earlier. DIC 2. Entitlement for service connection for cause of death When a veteran dies from a service-connected disability, the veteran’s surviving spouse may be entitled to DIC benefits for the cause of death. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. At the time of his death, the Veteran was service connected for lumbosacral strain with root compression due to spondylolisthesis, sensory polyneuropathy in each lower extremity, tinnitus, and bilateral hearing loss. The Veteran’s death certificate lists the cause of death as congestive heart failure and cardiomyopathy. Neither the appellant or her attorney have stated, and the record does not reveal, whether or how the Veteran’s service-connected disorders might have contributed substantially or materially to the Veteran’s death from congestive heart failure or cardiomyopathy or how congestive heart failure or cardiomyopathy might be related to service. In the absence of any evidence or argument suggesting a possible relationship between the Veteran’s service or his service-connected disabilities and the cause of his death, entitlement to service connection for the cause of the Veteran’s death is denied. 3. Entitlement to DIC under 38 U.S.C. § 1318 The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318. In pertinent part, 38 U.S.C. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran’s death was not service-connected. These benefits are payable under certain circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a period of 10 years or more preceding death; since the Veteran’s release from active duty and for at least 5 years immediately preceding death; or for at least one year immediately preceding death if the Veteran was a former prisoner of war. DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 are paid in the same manner as if the veteran’s death were service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22. In this decision, TDIU was granted from May 2007. The Veteran died in August 2016. As the Veteran was in receipt of TDIU for less than 10 years prior to his passing, the claim for DIC benefits under 38 U.S.C. § 1318 is denied. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.