Citation Nr: 21071057 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-08 185 DATE: November 29, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected skin cancer residual scars for accrued benefits purposes is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected disfigurement due to skin cancers of the head and ears for accrued benefits purposes is denied. Entitlement to a disability rating in excess of 50 percent, including on an extraschedular basis, for service-connected paralysis of the left true vocal cord for accrued benefits purposes is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) for accrued benefits purposes is granted. FINDINGS OF FACT 1. The preponderance of the most probative evidence establishes the Veteran's skin cancer residual scars of the mid-back, right upper back, right dorsal forearm, and left upper arm did not manifest in three or more scars that were unstable or painful; or underlying soft tissue damage; or affected an area or areas of 144 square inches (929 sq. cm.) or greater; or caused functional impairment of the affected areas. 2. The preponderance of the most probative evidence establishes the Veteran's disfigurement due to skin cancers of the head and ears did not manifest in visible or palpable tissue loss, gross distortion, or asymmetry of one feature or paired set of features (e.g., ears); or two or three characteristics of disfigurement; or caused functional impairment of the affected areas. 3. The preponderance of the most probative evidence establishes the Veteran's symptomology including difficulty swallowing food with episodic pain, difficulty breathing, and voice hoarseness are adequately contemplated by the schedular rating criteria for complete paralysis of the tenth (pneumogastric, vagus) cranial nerve under Diagnostic Code (DC) 8210. 4. For the entire period on appeal, the Veteran has met the threshold schedular rating requirement and has been unable to secure and follow substantially gainful employment, consistent with his education and occupational background, because of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for skin cancer residual scars for accrued benefits purposes have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.118, DC 7818-7804. 2. The criteria for an initial disability rating in excess of 10 percent for disfigurement due to skin cancers of the head and ears for accrued benefits purposes have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.118, DC 7818-7800. 3. The criteria for an extraschedular rating for paralysis of the left true vocal cord for accrued benefits purposes have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.321(b), 4.124A, DC 7902-8210. 4. The criteria for a TDIU for accrued benefits purposes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. INTRODUCTION The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from March 1966 to September 1969. In March 2018, the Veteran passed away and his widow was thereafter substituted as the Appellant for purposes of accrued benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2009 and December 2020 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran offered testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in St. Petersburg, Florida. A copy of the transcript is of record. When these matters came before the Board most recently in March 2021 they were remanded for additional development. The additional development has been conducted and the matters return to the Board for further appellate review. As an initial matter, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability ratings are determined by applying a schedule of ratings (Ratings Schedule) that is based upon the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. Id. A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed the entire record as of the date of notification of the Rating Decision on appeal, but only evidence pertinent to the determination of the Veteran's increased ratings and TDIU claims will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Entitlement to an initial disability rating in excess of 10 percent for service-connected skin cancer residual scars for accrued benefits purposes is denied. The Appellant seeks an initial disability rating in excess of 10 percent for the Veteran's service-connected skin cancer residual scars of the mid-back, right upper back, right dorsal forearm, and left upper arm for accrued benefits purposes. The Veteran's scars were rated under DCs 7818 and 7804. 38 C.F.R. § 4.118. Pursuant to DC 7818, malignant skin neoplasms (other than malignant melanoma) not of the head, face, or neck are to be rated under DCs 7801, 7802, 7804, or 7805, or impairment of function. Id. Effective August 13, 2018, the criteria for rating skin/scar disabilities were revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the [V]eteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018, amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See VAOPGCPREC 3-2000, 7-2003. As the instant matter was pending prior to the August 13, 2018, revisions, the Appellant's increased rating claim for scars must be considered under both sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018. See 83 Fed. Reg. at 32593. Prior to August 13, 2018, per the rating schedule, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. The August 13, 2018, skin/scar amendments introduce a General Rating Formula for skin conditions and amend DCs 7801 and 7802 by characterizing multiple scars by six body zones affected rather than by extremity. In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with 38 C.F.R. § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(b). Following the August 13, 2018, revisions, DC 7801 remains essentially the same except that "deep and nonlinear" has been changed to "underlying soft tissue damage." 38 C.F.R. § 4.118. Further, DC 7802 remains essentially the same except that "superficial and nonlinear" has been changed to "not associated with underlying soft tissue damage." Id. DCs 7804 and 7805 were not affected by the August 13, 2018, skin/scar amendments. Id. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. Any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800 through 7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. Pursuant to the Board's March 2021 remand, the Veteran's claims file was reviewed by a VA examiner in March 2021 and again by a different VA examiner in July 2021 for purposes of offering posthumous retrospective medical opinions regarding the nature and severity of the Veteran's service-connected scars. According to the March 2021 VA examination report, the Veteran's residual scars of the left flank, left elbow, right upper arm, left forearm, and right clavicle were "superficial or at best moderate." The examination report states that, "there is no evidence of pain, itching, skin break-down, limitations in motion, edema, keloid formation, adherence to underlying tissue, elevation, or depression." The VA examiner opines that, "[t]he residual effects of the [V]eteran's scar(s) were minimal at best and were mostly cosmetic." Another VA examiner authored an addendum posthumous retrospective medical opinion in July 2021. According to the examination report, "all of the Veteran's scars prior to 5/2017 healed well with no sequelae," including of the left flank, left elbow, right upper arm, left forearm, and right clavicle. Further, the VA examiner reports that, "[t]here is no evidence in the record for any unstable or painful scars" or "any disabling effects from any scar prior to 5/2017." According to the examiner, the Veteran's scar of the mid-back measured 2.0 cm x 0.5 cm, right dorsal arm measured 1.0 cm x 1.0 cm, left arm measured 2.0 cm x 0.5 cm, and upper back measured 7.0 cm x 0.5 cm. The Board assigns significant probative weight to the VA examination reports in this matter. The opinions appear factually accurate, fully articulated, and have sound reasoning for their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the opinions are based upon a comprehensive review of the claims file, the examiners' expertise, and are not inconsistent with the medical treatment evidence of record. As such, the Board finds the VA examiners applied valid medical analysis to the significant facts of this particular case. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has also reviewed and considered the lay evidence of record, including the Veteran's competent statements and hearing testimony. While the Veteran is competent to report his history and symptoms related to scarring, he is not competent to provide findings as to the nature and severity of his scars under the applicable rating criteria as such requires appropriate medical training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the medical evidence does not indicate any scars associated with underlying soft tissue damage (formerly "superficial and nonlinear") or that were in an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DCs 7801, 7802. The Veteran's 10 percent initial rating was assigned under DC 7804 based upon one painful scar of the posterior trunk. 38 C.F.R. § 4.118. The evidence does not indicate three or more scars that were unstable or painful warranting a higher rating. Id. Moreover, the lay and medical evidence does not indicate any disabling effect(s) not considered in a rating provided under DC 7804. Based upon the foregoing, the Board finds the preponderance of the most probative evidence of record establishes that a disability rating in excess of 10 percent for service-connected skin cancer residual scars for accrued benefits purposes is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49. Entitlement to an initial disability rating in excess of 10 percent for service-connected disfigurement due to skin cancers of the head and ears for accrued benefits purposes is denied. The Appellant seeks an initial disability rating in excess of 10 percent for the Veteran's service-connected disfigurement due to skin cancers of the head and ears for accrued benefits purposes. The Veteran's disfigurement was rated under DCs 7818 and 7800. 38 C.F.R. § 4.118. The December 2020 Rating Decision granted a 10 percent rating for the Veteran's service-connected disfigurement due to skin cancers of the head and ears based upon one characteristic of disfigurement, specifically, a scar of the at least one-quarter inch (0.6 cm) wide at the widest point. Pursuant to DC 7818, malignant skin neoplasms (other than malignant melanoma) of the head, face, or neck are to be rated as disfigurement under DC 7800 or impairment of function. Id. DC 7800 was not changed by the August 13, 2018, amendments. Under DC 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (e.g., ears); or, with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features; or, with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features; or, with six or more characteristics of disfigurement warrants an 80 percent rating. Id. Note 1 to DC 7800 list the eight characteristics of disfigurement: scar 5 or more inches (13 or more cm) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 cm2); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 cm2); underlying soft tissue missing in an area exceeding six square inches (39 cm2); and, skin indurated and inflexible in an area exceeding six square inches (39 cm2). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. A characteristic of disfigurement, even if present in more than one scar, is only counted once for evaluation purposes. Id. Pursuant to the Board's March 2021 remand, the Veteran's claims file was reviewed by a VA examiner in July 2021 for purposes of offering a posthumous retrospective medical opinion regarding the nature and severity of the Veteran's service-connected disfigurement due to skin cancers of the head and ears. According to the VA examination report, "[t]he record does not include any comprehensive skin assessments for the Veteran after 6/2017, so no objective determination of the skin/scars after that time can be established." The VA examiner notes the Veteran underwent left neck and left infra-auricular shave biopsies for squamous cell carcinoma in May 2017, with electrodessication and curettage treatment "resolving" the cancer. According to the VA examiner, "[t]here is no documentation of persistent/recurrent tumor and/or disfiguring scars of the left neck or the left infra-auricular." The VA examiner reports "there is no evidence for any poor or inadequate healing of any skin lesions despite multiple Dermatology treatments, biopsies, [and] excisions," including of the right cheek and left lateral neck which were "both well healed with no disfigurement or recurrence noted prior to Veteran's death." Moreover, according to the VA examiner, the Veteran's scars "did not involve any pain or instability, visible or palpable tissue loss, gross distortion or asymmetry of one or more features or paired set of features (e.g., ears), characteristics of disfigurement, and/or any disabling effects." Lastly, the examiner noted that, while the Veteran "did have unknown status of persistent [squamous cell carcinoma] on top of head and unknown status of defect along left helix due to [squamous cell carcinoma] excision," it is "unknown" if these resolved or improved prior to the Veteran's death. The Board assigns significant probative weight to the VA examination report in this matter. The opinion appears factually accurate, fully articulated, and has sound reasoning for the conclusion. See Nieves-Rodriguez, 22 Vet. App. 295. Moreover, the opinion is based upon a comprehensive review of the claims file, the examiner's expertise, and is not inconsistent with the medical treatment evidence of record. As such, the Board finds the VA examiner applied valid medical analysis to the significant facts of this particular case. See Stefl, 21 Vet. App. at 124. The Board has also reviewed and considered the lay evidence of record, including the Veteran's competent statements and hearing testimony. While the Veteran is competent to report his history and symptoms related to disfigurement, he is not competent to provide findings as to the nature and severity of such disfigurement under the applicable rating criteria as such requires appropriate medical training. See Jandreau, 492 F.3d 1372. In sum, the medical evidence does not indicate any scars of the head, face, or neck involving visible or palpable tissue loss, gross distortion, or asymmetry of one feature or paired set of features (e.g., ears); or, with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. Additionally, the medical evidence does not establish any unstable or painful scars of the head, face, or neck. Id., DC 7804. Moreover, the lay and medical evidence does not indicate any disabling effect(s) not considered in a rating provided under DC 7800. Based upon the foregoing, the Board finds the preponderance of the most probative evidence of record establishes that a disability rating in excess of 10 percent for service-connected disfigurement due to skin cancers of the head and ears for accrued benefits purposes is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. 49. Entitlement to a disability rating in excess of 50 percent, including on an extraschedular basis, for service-connected paralysis of the left true vocal cord for accrued benefits purposes is denied. The Appellant seeks a disability rating in excess of 50 percent for the Veteran's service-connected paralysis of the left true vocal cord for accrued benefits purposes. The Veteran's disability was rated under diseases of the cranial nerves, specifically, DC 7902-8210 regarding paralysis of the tenth (pneumogastric, vagus) cranial nerve. 38 C.F.R. § 4.124A. The assigned 50 percent rating is the highest schedular rating available for paralysis of the tenth cranial nerve on any basis. 38 C.F.R. § 4.124A, DC 8210. This rating is warranted where there is complete paralysis and is dependent upon the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart. Id. In an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Director of Compensation Service (Director) for potential assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extraschedular evaluation may be assigned when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Board is precluded by regulation from assigning an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)(1); however, the Board can review the denial of an extraschedular rating on appeal. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Director's decision is not evidence; but rather, the de facto RO decision and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Recently, the Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015). Pursuant to the Board's March 2021 remand, the claim was referred to the Director for consideration of the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b); see Doucette v. Shulkin, 28 Vet. App. 366 (2017). An administrative review was completed by the Director in April 2021, and the advisory opinion states that, "the objective evidence of record shows that the disability pattern most closely approximates the level of severe impairment that the Veteran was assigned." According to the advisory opinion, "[t]here is no evidence corroborate [sic] incapacitating episodes creating marked interference with employment or frequent hospitalizations due specifically to the paralysis [...] or treatment." The opinion also states that, "[t]he evidence of record does not show that the currently assigned, or available, schedular evaluations for paralysis, left true vocal cord is inadequate due to exceptional or unusual circumstances." Extraschedular consideration is now before the Board for the period on appeal. 38 C.F.R. § 3.321(b); see Bowling v. Principi, 15 Vet. App. 1 (2001). In this matter, the Veteran underwent a VA examination in November 2008 related to this increased rating claim. The VA examination report notes the Veteran endorsed difficulty and episodic pain with swallowing food, as well as voice hoarseness. Also, while the report indicates occasional breathing difficulty, it also references an August 2008 ear, nose, and throat (ENT) examination noting "no cause of shortness of breath from an ENT prespective [sic]." Finally, the VA examination report indicates severe effects on recreation, traveling, and feeding, and mild effects on chores and shopping. Another VA examiner conducted a review of the claims file and authored a posthumous retrospective medical opinion in August 2020. The VA examiner reported the Veteran's "complaints of difficulty swallowing food which can also be painful, voice hoarseness, difficulty breathing causing him to panic, [and] narrow throat causing difficulty or impossibility of life support if required." Pursuant to the Board's November 2020 remand, another posthumous retrospective VA examination report was submitted in this matter in December 2020. According to the VA examiner, the Veteran's left true vocal cord paralysis resulted in multiple symptoms including difficulty swallowing food with episodic pain, difficulty breathing, and voice hoarseness. The VA examiner reported the Veteran experienced postural, manipulative, communicative, and environmental limitations due to his condition. The Board assigns significant probative weight to the VA examiners' opinions in this matter. Specifically, the November 2008 VA examiner examined the Veteran and the August 2020 and December 2020 examiners reported reviewing the claims file, and their opinions appear factually accurate, fully articulated, and have sound reasoning for the conclusions reached. See Nieves-Rodriguez, 22 Vet. App. 295. Moreover, the VA examiners' opinions appear based upon their expertise and are not inconsistent with the medical treatment evidence of record. As such, the Board concludes the VA examiners applied valid medical analysis to the significant facts of this particular case. See Stefl, 21 Vet. App. at 124. The Veteran's VA medical center records covering the period on appeal have been reviewed. For example, in August 2011 the Veteran reportedly had a "difficult airway" and required local anesthesia for skin surgery. In January 2017, the Veteran's weight dropped from 126 pounds in February 2016 to 106 pounds, with reportedly "[n]o finding to explain the [Veteran's] weight loss." VAMC records dated March 2017 indicate no abnormalities observed by CT imaging to account for the Veteran's significant weight loss. VAMC records dated March 2018 include a swallow study revealing aspiration of thin and nectar thick liquids, and also indicate the Veteran required a feeding tube and that his spouse was performing bolus feedings. Radiologic imaging dated March 2018 revealed new moderately sized right pleural effusion and extensive consolidative changes "suggesting pneumonia," and the Veteran's cause of death is reported as aspiration pneumonia, MRSA, and sepsis with vocal cord paralysis and coronary artery disease listed as conditions contributing to death. The Board has also reviewed and considered the lay evidence of record, including the Veteran's competent statements and hearing testimony. For example, in October 2010, the Veteran reported having to undergo skin surgeries while awake due to inability to be intubated or anesthetized as a result of his vocal cord paralysis. The Veteran testified to losing his voice with prolonged talking and experiencing difficulty eating and breathing. While the Veteran is competent to report his history and symptoms related to left true vocal cord paralysis, he is not competent to provide findings as to the nature and severity of such paralysis under the applicable rating criteria as such requires appropriate medical training. See Jandreau, 492 F.3d 1372. Based upon the foregoing, the Board finds the preponderance of the probative evidence of record does not present such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular rating pursuant to the provisions of 38 C.F.R. § 3.321. First, the Board notes there has been no demonstration that the Veteran's service-connected paralysis of the left true vocal cord alone is productive of marked interference with employment beyond that contemplated in the current 50 percent rating, and there is no evidence of frequent hospitalizations related to this condition. 38 C.F.R. §§ 3.321, 4.124A, DC 8210. Thus, the use of the regular rating criteria is appropriate. Second, the rating criteria adequately contemplates the Veteran's symptomology including difficulty swallowing food with episodic pain, difficulty breathing, and voice hoarseness with considerations of the level of paralysis affecting sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart. Id.; see Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. 49. In sum, the Rating Schedule is shown to provide a fair and adequate basis for rendering a decision in this matter. Entitlement to a TDIU is granted. The Appellant seeks entitlement to a TDIU for accrued benefits purposes. The Veteran submitted his Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in August 2009 due to residuals of service-connected thyroid disease, to include paralysis of the left true vocal cord, and skin cancer. It is the established policy of VA 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 (i.e., a TDIU rating). 38 C.F.R. § 4.16. A TDIU rating is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id.; see 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." See Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding whether the Veteran has the physical ability, both exertional and non-exertional, to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation(s) at issue. See Ray, 31 Vet. App. at 73. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. 38 C.F.R. § 4.16(a) addresses schedular TDIU, which applies where a Veteran has a single disability rated at 60 percent or more, or two or more disabilities rated collectively at 70 percent or more where one of them is rated at least 40 percent or more. Id., at 63. In this matter, the Veteran first met the requisite schedular rating for entitlement to a TDIU in April 2003. Specifically, at that time the Veteran's combined service-connected disability rating increased to 70 percent, including one disability (i.e., paralysis, left true vocal cord) rated 50 percent disabling. As such, the Veteran satisfied the requisite schedular rating threshold for entitlement to a TDIU for the entire appellate period up to the time of his death. The September 2009 Rating Decision on appeal denied the Veteran's claim for entitlement to a TDIU by finding him unemployable due to non-service-connected disabilities, specifically, rheumatoid arthritis and gastrointestinal disorder. The Rating Decision based the determination on records received from the Social Security Administration (SSA) showing the Veteran became disabled under their regulations beginning August 2000. The Veteran testified in this matter that he last worked full-time in August 2000 and received SSA disability benefits. An income history received from the SSA in March 2019 does not reflect either earned or unearned income for the Veteran. In light of the foregoing, the Board is satisfied the Veteran did not engage in substantially gainful employment at any time during the period on appeal prior to his death. Regarding whether the Veteran's service-connected disabilities including paralysis of the left true vocal cord, residuals of thyroidectomy, skin cancer residual scars, and disfigurement due to skin cancers of the head and ears rendered him unable to secure and follow substantially gainful employment, for the reasons set forth below, the Board finds they do. A VA examination report dated November 2008 indicates the Veteran's service-connected vocal cord paralysis resulted in severe limitations in recreation, traveling, and feeding, and mild effects in chores and shopping. Pursuant to the Board's November 2020 remand, a posthumous retrospective VA examination report was submitted in December 2020. The VA examiner reports that, "[s]ince 2009, the [V]eteran has had multiple symptoms related to this condition" resulting in postural, manipulative, communicative, and environmental limitations. Specifically, the examiner indicates limitations including, inter alia, lifting/carrying less than 10 pounds, standing/walking less than two hours total during an eight-hour workday, sitting less than six hours total during an eight-hour workday, and pushing and/or pulling less than 10 pounds with any extremity. Reaching in all directions and speaking was also limited, as was exposure to fumes, odors, dusts, gases, poor ventilation, and hazards (e.g., machinery, heights). Another VA examination report dated December 2020 indicates the Veteran's service-connected skin cancer residual scars resulted in episodic exertional and environmental limitations. According to the examiner, the Veteran would require "prevention of infection" and avoidance of even moderate exposure to wetness or humidity "due to open/healing areas from skin [cancer] treatments when it would have been applicable." As noted in a July 2021 addendum opinion, the Veteran underwent numerous treatments for skin cancer including shave biopsies and approximately 17 excisions during the period on appeal. A VA examination report dated December 2020 regarding the Veteran's service-connected residuals of thyroidectomy also reports exertional, postural, manipulative, and environmental limitations. Specifically, the examiner indicates limitations including, inter alia, lifting/carrying less than 10 pounds, standing/walking less than two hours total during an eight-hour workday, sitting less than six hours total during an eight-hour workday, and pushing and/or pulling less than 10 pounds with any extremity "due to varying fatigue levels." Reaching in all directions and fine manipulation were limited, and the Veteran was never to climb ramps, stairs, ladders ropes, or scaffolding, never crouch or crawl, and only occasionally balance, stoop, or kneel. Further, the Veteran was reportedly limited to avoiding even moderate exposure to extreme cold or heat, wetness, or humidity due to residuals of thyroidectomy. The evidence of record indicates the Veteran possessed a high school diploma with no additional education or training. Also, the evidence indicates the Veteran worked for 32 years in "hazardous waste contracting." Based upon the foregoing, the Board finds the preponderance of the most probative evidence of record establishes the Veteran was precluded from securing and following a substantially gainful occupation due solely to his service-connected disabilities. More specifically, lay and medical evidence of record indicates the Veteran satisfied both the economic and non-economic components for entitlement to a TDIU, as he was unable to perform the exertional and non-exertional demands of competitive full-time employment (i.e., eight-hour workdays with normal breaks) consistent with his education and occupational background. See Ray, 31 Vet. App. at 73. Accordingly, entitlement to a TDIU for the entire period on appeal, for purposes of accrued benefits, is granted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.