Citation Nr: 21067565 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-22 778 DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to service connection for a dental disorder is denied. FINDINGS OF FACT 1. The service-connected disabilities render the Veteran unable to secure and follow a substantially gainful occupation. 2. The Veteran had loss of alveolar process because of periodontal disease, such loss is not considered disabling for VA purposes. CONCLUSIONS OF LAW 1. The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.18, 4.19. 2. A dental disorder was not incurred or aggravated during service nor was it proximately due to or the result of a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310, 3.381. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to August 2001. He died in June 2017 and the Appellant claims as his surviving spouse. In a February 2018 letter, the RO determined that the Appellant was a proper substitute claimant with respect to the Veteran's pending appeal. Regarding representation, a report of contact in August 2021 reflects that the representation was revoked. It is critical to note that a 60 percent evaluation was recently assigned retroactively to September 1, 2001. 1. TDIU The Veteran contends his service-connected disabilities render him unemployable. The Veteran filed a claim for increased ratings or service connection for several disabilities in April 2011. A statement from a medical doctor dated in June 2011 noting these disabilities rendered the Veteran unable to work since March 2011. TDIU can be awarded where the scheduler rating is less than total, 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). Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. During the relevant period (from April 2011), the Veteran was service-connected for multiple myeloma with osteoporosis at 100 percent disabling (from June 30, 2011), coronary bypass surgery 60 at percent disabling, right upper extremity peripheral neuropathy 50 percent disabling, left upper extremity peripheral neuropathy at 40 percent disabling, limitation of motion of lumbar spine at 40 percent disabling, lower right and left lower extremity diabetic peripheral neuropathy at 30 percent disabling each, diabetes mellitus at 20 percent disabling, tendon inflammation of the left shoulder at 10 percent disabling, limited motion of the wrist at 10 percent disabling, and several noncompensable ratings (hearing loss, hypertensive vascular disease, hemorrhoids, cystitis, and diabetic nephropathy). All effective rating were effective either prior to April 1, 2011 or on that date, excepting right and left upper extremity peripheral neuropathy, which were both effective at 20 percent from April 1, 2013 and the current rating from February 27, 2013. The Veteran's combined rating is 100 percent from June 30, 2011 and 90 percent from April 1, 2011. The Veteran meets the schedular requirements for consideration for TDIU under 38 C.F.R. § 4.16(a). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 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. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The Veteran has not completed and returned the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that was sent to him. The Veteran died due to multiple myeloma, listed as the first cause of death on the death certificate, as well as multisystem organ failure and bacteremia. Contributing causes of death were non-insulin-dependent diabetes (NIDDM) and coronary artery disease (CAD). The majority of the Veteran's occupational history consists of his work in the U.S. Navy, for overly 25 years, retiring as Caption (0-6) and having worked in a variety of officer positions. His education included officer candidate school and officer training and naval post-graduate education. A May 2017 VA occupational therapy note gives an occupational profile as the Veteran was in the Navy for 27 years and worked as an ROTC instructor at a local High School for 12 years but had to retired due to medical reasons. At the time the Veteran left employment, it was noted that the Veteran wore a full body brace (except for sleeping) since December 2010. See, e.g., statement from Dr. F.V., received in June 2011. These were due to service-connected disabilities severely restricted movement and daily living activities (such as personal hygiene activities, showering, getting dressed, etc.) and he used a four-wheel walker. Id. An Informal Brief in Support of Appeal, dated in July 2020, accurately reflected the Veteran's work history and functional impairment, as noted by VA examiners. After retiring from military service, the Veteran worked as a high school Navy ROTC instructor. Despite his efforts and desires to continue employment, the Veteran was forced to leave the position for medical reasons relating to his severe disabilities in January 2011. The representative argued it was logical to assume that conditions that were severe enough to contribute to one's death would also have substantially contributed to one's unemployability. VA examiners have consistently found that the Veteran was incapable of performing the tasks necessary for substantially gainful physical employment due solely to service-connected disabilities. Regarding his heart disability, the July 2011 examiner noted that the condition had resulted in multiple myocardial infarctions in 1995, 1997, and 1998, and included symptoms of angina, dizziness, syncope, fatigue, and dyspnea which was brought on by only moderate exertion. The Informal Brief further noted that similar findings were made during the October 2012 examination in which the examiner noted a past history of percutaneous coronary intervention, myocardial infarction, and coronary bypass surgery. The July 2011 examiner found his left shoulder and wrist disabilities to cause decreased mobility and pain, and that due to these symptoms he had to defer overhead activities to his colleagues in his last employment position. These functional limitations were echoed by the October 2012 examiner when it was noted in the examination report that it would be difficult for the Veteran to repetitively lift things above his head, and it would be difficult for him to lift heavy things with his left hand. With regard to his low back, the July 2011 examination report reflects complaints of weekly flare-ups of severe low back pain lasting for hours which were precipitated by being upright and were only alleviated by lying down. During the flare-ups, the Veteran reported that he cannot function. Pertinently, the examiner noted other significant limitations due to his back in that he was unable to stand for more than a few minutes; unable to walk more than a few yards; had severe limitations in chores, shopping, recreation, and travel; and was unable to drive. The Informal Brief, with regard to the severity of the pain and numbness caused by the Veteran's bilateral peripheral neuropathy of the upper and lower extremities, notes that a February 2013 examiner indicated that the pain is constant and has increased from the leg and into the feet, ranging from a severity level of 5 out of 10, to as much as 9 out of 10. The Veteran reported that the pain is exacerbated by standing and prolonged sitting. The examiner found severe intermittent pain in the bilateral upper extremities, as well, and severe paresthesias in the bilateral lower extremities, and severe numbness in the bilateral lower extremities the multiple VA examiners of record have placed significant functional limitations on practically every part of the Veteran's body. When viewing service-connected disabilities and their respective functional limitations individually, one may be of the opinion that they would not prevent all forms of substantially gainful employment. However, when one considers the functional limitations in combination and as a whole, it is evident that the Veteran's service-connected disabilities alone render him unable to perform. even the most minimal activities required for substantially gainful employment, to include a sedentary occupation. The brief further states the Veteran submitted to the Board an April 2017 Vocational Assessment completed by P. C., MS, AREA, QRP. C, a Certified Vocational Evaluator with extensive training and expertise in the field of vocational counseling. It was ultimately the opinion of C. that the Veteran had been unable to secure or follow a substantially gainful occupation as a result of his service-connected conditions (without regard to any nonservice connected conditions) since at least 2011 when he was last capable of maintaining a predictable schedule required in competitive employment. The Brief concludes that prior to his death, VA examiners assigned functional limitations to nearly every aspect of his physical being. The Veteran's severe heart condition prevented him from performing any activities at even modest levels of exertion while his shoulder and wrist disabilities prevented him from lifting or carrying any amount of significant weight. His bilateral upper and lower extremity peripheral neuropathy prevented him from standing or sitting for prolonged periods of time due to the severe pain and numbness caused by those disorders. Given the above, the Board finds the Veteran would be unable to secure or follow a substantially gainful occupation, as highlighted by the representative, as due to a combination of disabilities to include his neurological and orthopedic impairments as well as impairments from the service-connected coronary bypass surgery. The Veteran in fact left employment due to medical issues, which would necessarily include the service-connected disabilities, given the severity of impairment noted above. Therefore, the symptoms would cause the Veteran to be unable to work, to include even light or office-type work, due to the extent of impairments, his inability to drive to a worksite, and the need to take frequent absences due to medical treatment or due to flare-ups or for other medical issues caused by service-connected disabilities. His service-connected disabilities would cause functional impacts outlined above, including limitation which preclude even light duties, with difficulty walking, lifting, standing, etc. Given all of the above, the Veteran be unable to secure or follow a substantially gainful occupation. The Board finds that the evidence supports a finding that the Veteran is unable to secure and follow any substantially gainful occupation because of his service-connected disabilities. Given the above, the Board finds entitlement to TDIU is warranted. The Board is fully aware that there is a 100 percent combined evaluation as of June 2011 and SMC had been awarded as of the same date. However, there was a retroactive change in the evaluation of the heart disease and the record adequately establishes unemployability as of March 2011. This grant merely covers the period between eligibility and the current grant of the 100 percent evaluation and SMC. 2. Dental disorder The Appellant contends that the Veteran's dental disorder (residuals of gum surgery) was due to the service-connected multiple myeloma or due to his service-connected diabetes mellitus. Treatment records show the Veteran had periodontitis with missing teeth (1, 5, 16, 17, 21, 32); several restored, resin, or amalgam teeth; and several porcelain crowns. See, e.g., August 2011 VA dental consultation note. A VA opinion was obtained in May 2021 regarding a dental disorder. The examiner reviewed the relevant evidence and opined that the Veteran's residuals of gum surgery was caused or aggravated by his service-connected diabetes, type II. Further, the examiner stated, as per the medical record, the Veteran has chronic periodontitis, treated with surgical dental procedures. As seen in peer reviewed medical articles, diabetes a major risk factor for the development of periodontitis, therefore his service-connected diabetes likely either caused or aggravated his chronic periodontitis. This opinion was supported by articles and dental treatment notes referenced in the VA opinion. Specifically, the examiner cited VA dental treatment notes for chronic periodontitis back to April 2004. Disability compensation may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is only available for loss of teeth, where the lost masticatory surface cannot be restored by suitable prosthesis, if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In other words, compensation is permitted for missing teeth; however, it also requires that such tooth loss be associated with underlying bone (maxilla/mandible) loss acquired as a result of service trauma or non-periodontal disease, such as osteomyelitis. There is no argument or evidence of trauma or that something other than periodontal disease is responsible for tooth loss. The overwhelming evidence shows that the Veteran suffered from periodontal disease, not any other dental disorder such as osteomyelitis or trauma. Accordingly, the Veteran is prohibited from receiving compensation as a matter of law and therefore entitlement to service connection must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.