Citation Nr: 21000422 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-06 536 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for cause of Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to May 1983. The Veteran died in January 2013; the Appellant is his widow. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board finds that remand is required for referral to the Director, Compensation Service, for extraschedular consideration of a TDIU. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If warranted, the Board may instead refer the claim to the Director, Compensation Service (Director), for extraschedular consideration. 38 C.F.R. § 4.16(b). Here, during the relevant period, prior to the Veteran’s death, the Veteran had a combined rating of 90 percent, however, failed to carry a single disability rating of 40 percent or higher, as required by the criteria for a schedular rating. During the relevant period the Veteran was service-connected for bilateral frostbite residuals (each 20 percent), posttraumatic stress disorder (PTSD) (30 percent), bilateral shoulder disability (each 20 percent), dental (20 percent), right knee instability (20 percent), right knee limitation of extension (10 percent), right knee limitation of flexion (0 percent) left wrist (10 percent), tinnitus (10 percent), a back disability (10 percent), and bilateral hearing loss (0 percent). A close review of these disabilities does not reveal a single disability rating at 40 percent of higher, or any related disabilities, whether in nature or cause, that could be combined to equal a 40 percent rating. As such, the Board must find that these levels do not meet rating threshold set forth in §4.16(a); thus, the entire appeal period under consideration must be addressed on an extraschedular basis. The Board finds that referral to the Director for extraschedular consideration is warranted. During the time period prior to the Veteran’s death, the Veteran was in fact unemployed, and the record shows that he left his last employment as truck driver due to his service-connected orthopedic disabilities, namely his knee disability. A close review of the VA examinations and medical evidence of record, to especially include an April 2012 VA examination for the Veteran’s knees, show that the Veteran had functional loss due to his knee that prevented him from manual labor, to explicitly include truck driving. To this end, the VA examiner noted that the Veteran could do sedentary work. Additionally, the Appellant’s representative has submitted a March 2017 vocational assessment opinion that concluded that the due exclusively to the Veteran’s service-connected disabilities, and considering the Veteran’s skill and experience level, that the Veteran was in fact unemployable due to his service-connected disabilities prior to his death. The Board does acknowledge that the VA examiner concluded that the Veteran was not precluded from performing sedentary work, and to this end, the Board notes that the term sedentary work is not defined under VA law or regulations. While the VA examiner did not provide a precise definition of the term, from the description of the type of limitation that would occur, it is apparent the examiner was referring to a desk/office job in which an employee would be working on a computer or completing paperwork. The Board finds, based on the Veteran’s work history and experience as a truck driver, such type of work would not have been plausible for the Veteran. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). It is an acknowledgement that even though a rating less than 100 percent under the rating schedule may be correct, there are subjective factors that may permit 100 percent rating to a particular veteran under his or her own circumstances. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Board finds that this is such a case. The Veteran’s entire employment history does not lend itself to performing sedentary/desk work, prior to his death. Therefore, as he could no longer perform work of the type of work he had the experience and skills, due to his service connected disabilities, the Board must conclude that he would not have been able to secure and maintain substantially gainful employment consistent with his educational background and occupational history prior to his death. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board, however, is precluded from assigning a TDIU on an extraschedular basis in the first instance. Accordingly, remand is required for referral to the Director for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). 2. Entitlement to service connection for cause of Veteran’s death is remanded. The Board finds that the acquired VA opinions pertaining to the claim for service connection for cause of death, are considered inadequate. Specifically, in a June 2016 VA report and opinion, the VA examiner found that based on X-ray and medical evidence directly after service, that the Veteran’s ultimate causes of death, specifically cardiac arrest and heart failure, were not due to an April 1983 finding of an enlarged bilateral hilar and right paratracheal stripe, or enlarged heart. To this end, the examiner noted explicitly normal post-service findings related to the Veteran’s heart to justify the negative nexus. However, in providing a rationale, the VA examiner also added, in part, that the Veteran’s cause of death “may have” been caused by his use of cocaine abuse and the use of oxycodone. The Board notes that oxycodone was prescribed to the Veteran as medication to manage pain due to his various orthopedic disabilities which are service-connected. The Board finds that additional development is required with specific regard to the June 2016 opinion statement that the Veteran’s use of oxycodone may have been the cause of the Veteran’s death. The Board finds the language used by the examiner, in noting that such medication “may” have caused the Veteran’s death is too equivocal to be dispositive of the claim, and an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians for treatment not already of record. 3. Refer the claim for TDIU prior to July 5, 2011, to the Director of the Compensation Service for consideration of whether TDIU is warranted for that period pursuant to 38 C.F.R. § 4.16(b). 4. Then, the entire claims file, to include a copy of this REMAND, should be made available to and reviewed by a clinician with appropriate expertise to offer an opinion as to whether cause of the Veteran’s death was related to his military service or due to a service-connected disability(ies). The report of examination should, among other things, include a discussion of the (i) appellant’s documented history and assertions, (ii) June 2016 VA medical opinion, and (iii) October 2017 VA medical opinion. The clinician must opine on: (a) whether any of the Veteran’s causes of death were at least as likely as not (50 percent or greater probability) due to any of the Veteran’s service-connected disabilities, or medication taken for such disabilities. The examiner must reconcile the opinion with previous opinions, specifically the June 2016 VA opinion which noted that the Veteran’s use of oxycodone “may” have caused his cardiac arrest. (Signature on the next page) DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, Counsel 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.