Citation Nr: 21003013 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-10 178 DATE: January 19, 2021 REMAND Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) on and after March 1, 2018, is remanded. REASONS FOR REMAND The Veteran had active service from December 1965 to September 1967. He served in the Republic of Vietnam. The Veteran had additional duty with the Puerto Rico Army National Guard. The Veteran died in August 2018. The Veteran’s surviving spouse has been substituted as the Appellant in this appeal. A March 2020 Board of Veterans’ Appeals (Board) decision determined that the issue of entitlement to a TDIU prior to March 1, 2018, was moot and dismissed that issue. The Board observes that the Veteran died from urothelial cancer, a type of bladder cancer. On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 was enacted and amended the provisions of 38 U.S.C. § 1116 to include bladder cancer. Entitlement to a TDIU on and after March 1, 2018, is remanded. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. If there is only one such disability, that disability shall be rated 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Department of Veterans Affairs (VA) clinical documentation dated in August 2018 states that the Veteran had a history of dysphagia associated with the service connected laryngeal cancer residuals. He was found to exhibit chronic laryngitis; reduced laryngeal elevation; severe dysphagia; and an elevated risk of aspiration. In light of such findings, the Board finds that further VA laryngeal evaluation is necessary to determine the nature and severity of the service connected laryngeal cancer residuals during the period from March 1, 2018, and August 12, 2018. The matters are REMANDED for the following action: Refer the Veteran’s records to the appropriate physician to assist in determining the nature and severity of the service connected laryngeal cancer residuals during the period from March 1, 2018, and August 12, 2018. The examiner should opine as to the impact of the service connected disabilities on the Veteran’s vocational pursuits during the relevant period. A rationale for all opinions should be provided. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate 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.