Citation Nr: 21061369 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 11-04 363 DATE: October 1, 2021 ORDER Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT The Veteran was unable to secure and follow substantially gainful employment prior to his death due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REFERRED Entitlement to a compensable rating for squamous cell carcinoma of the lung, status post upper left lobectomy is referred. Entitlement to service connection for amputation of the left arm is referred. Entitlement to special monthly compensation under 38 U.S.C. § 1114(k) for loss of use of one hand is referred. Entitlement to service connection for a heart condition is referred. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to March 1971, including in the Republic of Vietnam. He received the Vietnam Service Medal and Republic of Vietnam Campaign Medal with device, among other decorations. He died in 2016. The appellant is his surviving spouse who has been substituted as the claimant in this matter. The Board sincerely thanks the Veteran's family for his honorable service to the United States during wartime. In April 2021, the Board remanded this matter in order to obtain an opinion from the Director, Compensation Service, as to applicability of TDIU on an extraschedular basis. The agency of original jurisdiction (AOJ) obtained the Director's opinion in June 2021. The Board finds that the appeal may be granted to the maximum extent allowed by law, and no further discussion of the duty to assist is necessary. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran filed a claim for an increased rating for lung cancer, to include a temporary total evaluation, and for left arm removal in March 2016. He filed another claim for an increased rating for lung cancer, a claim of service connection for a left arm amputation as secondary to lung cancer, and a claim of service connection for a heart condition in April 2016. The AOJ did not address these claims prior to the Veteran's death. Therefore, the Board has referred each of these claims (and a reasonably raised claim for special monthly compensation due to loss of use of the left hand) to the AOJ for adjudication. See 38 C.F.R. § 19.9(b). 1. Entitlement to a TDIU, to include on an extraschedular basis A TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. It is established VA policy 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards. 38 C.F.R. § 4.16(b). The Board may not grant an extraschedular TDIU in the first instance. However, once the Director issues a decision, the Board must conduct de novo review without deference to the earlier decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). If the Board determines that an extraschedular TDIU is not warranted despite its earlier referral, it must provide an adequate statement of reasons and bases for its decision. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). VA is responsible for the ultimate decision of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 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 disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. Nevertheless, the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The Veteran's only compensable disability at his death was low back pain with degenerative joint disease, rated as 40 percent from April 19, 2006. He also received non-compensable ratings each for squamous cell carcinoma of the lung (lung cancer), status post left upper lobectomy; surgical scars associated with left upper lobectomy; hepatitis C; and a scar of the right wrist. See Rating Decision Codesheet, January 2021. His combined rating was only 40 percent, and, thus, he did not meet the schedular criteria. However, the Board observes that the Veteran filed claims for an increased rating for lung cancer, including an amputation of his left arm as a complication, in March and April 2016. These claims were pending at the time of the Veteran's death and were not addressed by the AOJ. The Veteran's DD Form 214 shows that his military occupational specialty was a light vehicle driver. After service, he worked as a lineman for a power company from 1979 until 2007. He reported obtaining his GED in the Army but having no other formal education or training. The record reflects a significant level of functional impairment due to the Veteran's low back, lung cancer, and hepatitis C disabilities. Regarding the back disorder, the record reflects a medical opinion from a VA physician, Dr. J.H., who found that the Veteran was unable to work due to chronic low back pain in May 2006. Records from the Social Security Administration (SSA) show that the Veteran was found disabled due to discogenic and degenerative disorders of the back as of March 2, 2007. He was evaluated by a chiropractor, J.S., who noted that the Veteran fell from a power pole fourteen feet high in March 2007 and had recurring pain since that time. A report of magnetic resonance imaging (MRI) testing from St. Vincent Mercy Hospital showed, among other things, a moderate sized disc herniation of the protrusion type at the L3-4, a persistent signal abnormality related to T11, and focal asymmetric degenerative disease of left side L3-4 and L4-5. In December 2009, a VA physician's assistant, G.H., examined the Veteran's lumbar disorder. He opined that sedentary employment was "not an option" for the Veteran because any type of prolonged sitting over 15 to 20 minutes increases his back pain. He concluded that the low back disorder affected the Veteran's ability to perform both physical and sedentary employment. The Veteran had a lobectomy to remove cancer on his left lung at a VA facility in July 2014. In December 2014, he told a VA psychologist that he was short of breath at times, which caused him anxiety. See CAPRI, January 2016 (Mental Health Note p.285). A VA examination report in December 2015 found that the Veteran needed intermittent inhalation bronchodilator therapy and exhibited "limited exertional ability." The Veteran's lung disorder worsened around March 2016. In April 2016, the Veteran sought treatment for shortness of breath and a productive cough. A VA intensive care note observed that he was previously admitted to a private hospital for respiratory distress and developed an arterial occlusion of the left arm requiring amputation in March 2016. He reported having shortness of breath over the past few days, and was admitted to the intensive care unit for "impending respiratory failure." See Medical Treatment Record Government Facility, May 2016 (Critical Care Note p.326). His physician, Dr. C.B.Y., submitted a letter stating that the Veteran was undergoing treatment for acute respiratory failure secondary to pneumonia in the setting of already compromised lung function. After spending a month in the hospital, the Veteran was discharged to a rehabilitation facility. The record reflects that he died in hospice in July 2016. The Veteran's death certificate lists causes of death including acute respiratory failure and sepsis. Lung disease due to prior agent orange exposure was listed as a condition contributing to death, but not resulting in the underlying cause. The Board concludes that the evidence is at least in equipoise as to whether the Veteran was unable to perform substantially gainful employment due to his service-connected disabilities. His service-connected lung cancer and low back disorders resulted in severe functional impairment, including limited exertional capacity, respiratory failure, and intense pain during the appeal period. Although the Veteran did not have a compensable rating for lung cancer at the time of his death, it appears to the Board that this would likely have changed if his claim had been processed to completion. Moreover, when considered with the Veteran's limited educational and occupational history, the record supports a grant of TDIU. The Board therefore concludes that, with the benefit of the doubt resolved in the appellant's favor, a grant of TDIU on an extraschedular basis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.