Citation Nr: 21072561 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-28 063A DATE: December 3, 2021 ORDER Entitlement to total disability due to individual unemployability (TDIU), for accrued benefits purposes is granted. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is granted. FINDINGS OF FACT 1. The Veteran died in December 2016. The appellant is the surviving spouse. 2. A claim for TDIU due to service-connected bipolar disorder was raised by the record and pending prior to the Veteran's death. 3. The Veteran's service-connected disability rendered her unable to maintain, or follow, a substantially gainful occupation. 4. The Veteran was rated as totally disabled since her release from active duty for a period of over 10 years immediately preceding her death. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for DIC pursuant to 38 U.S.C. § 1318 are met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Marine Corps from June 1999 to July 2000. She died in December 2016. The appellant is the surviving spouse. In March 2020 the Board issued a decision denying the claim of entitlement to accrued benefits and entitlement to DIC under U.S.C. § 1318. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated July 2021, the Court remanded the above issues pursuant to the terms of the joint motion remand (JMR). 1. Entitlement to accrued benefits Accrued benefits are periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. Accrued benefits shall, upon the death of such individual, be paid to the living person first listed below: (i) the Veteran's spouse; (ii) the Veteran's children (in equal shares); (iii) the Veteran's dependent parents (in equal shares). 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). To be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients listed above. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). In this case the appellant, is the surviving spouse. The appellant alleges entitlement to accrued benefits based on an unadjudicated implied claim of TDIU that was pending at the time of the Veteran's death. The March 2020 Board decision denied the claim finding that TDIU was not pending at the time of death as the Veteran never filed a claim for TDIU and the record included evidence of employment. The appellant appealed to the Court, who issued a JMR, concluding that the Board did not provide an adequate reasons and bases for finding that TDIU was not raised by the record and for not discussing whether the employment of record was marginal. Accordingly, the first issue at hand is whether there was a claim of TDIU pending at the time of the Veteran's death. In Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), the Court held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. In this case, the Board finds that the issue of TDIU was raised by the record in conjunction with the Veteran's increased rating claim for bipolar disorder for the following reasons. The Veteran initially filed a claim requesting entitlement to service connection for major depressive disorder received August 2000, which was granted in an August 2000 rating decision at 30 percent effective July 16, 2000. The Veteran timely appealed the rating, which was continued in an April 2002 rating decision. She then submitted additional medical records received April 2003. These records reported that the Veteran was unemployed as she had to quit her job due to hospitalization and revealed two inpatient hospitalizations for her psychiatric condition. A May 2003 rating decision again continued the 30 percent rating. Medical records from December 2003, received in January 2004, reported that the Veteran had difficulty at work, to include only being able to work one day and not being able to stay the whole day. The clinician noted a decrease in working ability and opined that the Veteran was permanently and totally disabled. In February 2004 the Veteran again requested an increased rating for her service-connected condition, which was granted in the March 2004 rating decision, which noted the reports of difficulty working. Based on the evidence of record, the Board finds that the issue of TDIU was raised by the record. Specifically, the medical records received April 2003 reporting unemployment due to her psychiatric hospitalizations, as well as the December 2003 records noting increased work difficulties raised the issue of TDIU. Thus, the issue of entitlement to TDIU was pending at the time of the Veteran's death as it remained unadjudicated. As such, the remaining issue is whether the Veteran's service-connected condition rendered her unable to secure or follow a substantially gainful occupation. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. In this case, the Veteran had one service-connected condition of bipolar disorder with psychotic features (bipolar disorder) at 70 percent for the relevant period on appeal. Thus, the schedular requirements for a TDIU were met. 38 C.F.R. § 4.16(a). The Board notes that the Veteran's rating for bipolar disorder was increased to 100 percent effective April 8, 2011, which renders the issue of entitlement to TDIU moot as of April 8, 2011. In making this finding, the Board recognizes that a grant of 100 percent does not always render the issue of TDIU moot. Specifically, special monthly compensation may be warranted if the Veteran has a 100 percent rating for a single disability and VA finds a TDIU is warranted based solely on the disabilities other than the disability rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). As the Veteran was only service connected for bipolar disorder, special monthly compensation was not warranted, at any time, as there were no other disabilities upon which to grant a TDIU. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For purposes of this case, the Board will consider the following occupational mental tasks: understanding, carrying out, and remembering simple instruction, dealing with changes in a routine work setting, and responding appropriately to supervisors and coworkers. The Veteran's education included a high school diploma and at least eight credit hours at a university. The Veteran's employment history included numerous jobs that appear to be part-time intermingled with periods of unemployment seemingly related to numerous episodes of decompensation, often resulting in hospitalization, sometimes for several weeks. Therefore, the Board has summarized the Veteran's known work history and episodes of decompensation, chronologically below. In March 2001 the Veteran worked at Wendy's one day a week and at Ross, possibly at the same time, while attending school. However, by May 2001 the medical records indicate that the Veteran was no longer employed and had been hospitalized for four days. It was recommended, she complete a day program at a local hospital prior to returning to school or work as she was distracted and unfocused. In June 2001, the Veteran stated she withdrew from school and was not planning to work over summer. She received inpatient care again in September 2001 after decompensating and becoming psychotic. In April 2002 the Veteran reported part time work at Target two days a week for a total of about 15 hours but was fired in late 2002. She also disclosed employment as a waitress but reported that she had to quit because of being hospitalized. In December 2003, she was employed but reduced her working hours to just one day a week and was unable to stay the whole day due to increased difficulty with her bipolar symptoms. Her psychiatrist concluded that the Veteran was permanently and totally disabled due to her service-connected problems as she had a substantial decrease in functioning, to include working ability, was unable to cope with stress, and decompensated easily. A few months later, the Veteran was hospitalized from April to June in 2004 for bizarre behavior, to include appearing to be almost catatonic. The medical records from March 2005 reported another hospital stay for three weeks at a non-VA facility. In December 2005, the Veteran reported that she had been fired her job at a shoe store and was working sporadically as a clerk. At the January 2006 VA examination, the Veteran reported that she was unemployed and unable to work due to her mental and emotional problems. The examiner found moderate to severe functional impairment in the vocational arena, noting that severe exacerbations result in hospitalizations, catatonia, and mutism and that the Veteran had periods of stability interspersed with periods of decompensation. The Veteran was hospitalized again in April 2007, where she was prescribed several psychotropics. In July 2007 she worked at Lowes and in February 2008 she worked part time at a craft store, which she enjoyed. However, she reported being hospitalized for ten days in April 2008. At the March 2009 VA examination the Veteran was unemployed. The examiner reported that she was easily distracted and continued to have serious problems with her mental health symptoms but only found reduced reliability and productivity due to her bipolar disorder. As of November 2009, the Veteran worked part time as a broker and/or business administrator, possibly for her mother. That same month she was hospitalized for several days due to stress, which made her chaotic or angry. In September 2010 the Veteran was admitted to the hospital under the Baker Act after being found riding a child's bike on a busy road. She was delusional, agitated and did not know the date or her location. At the June 2011 VA examination, the examiner reported that the Veteran was unemployed due to her mental disorder and noted two hospitalizations since her last examination. The examiner concluded that the severity of her bipolar disorder rendered her incapable of returning to work. TDIU may be assigned where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). The Board notes the appellant's contentions that while the Veteran had periods of employment during the period at issue, they were no more than marginal. Marginal employment may be established by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau, employment in a protected environment such as a family business or sheltered workshop, or other case specific facts. 38 C.F.R. § 4.16 (a). The evidence of record does not provide many details regarding the Veteran's work, specifically income or time lost or accommodations due to her service-connected disability. However, based on the type of employment, generally retail, and the available evidence suggesting that the work was predominantly part-time, it is probable that the Veteran's income was less than the poverty threshold established by the U.S. Census Bureau; thus, meeting the requirement for marginal work. Furthermore, and more compelling in this case, is the noneconomic competent of whether a veteran is able to secure and follow a substantially gainful occupation. While the Veteran demonstrated the ability to obtain employment, the record clearly establishes that she was unable to maintain it. Her periods of employment were fleeting, likely coinciding with periods of stability, which were consistently followed by periods of decompensation, hospitalization, and unemployment. This pattern is consistent with the assessments provided by the December 2005 and June 2011 VA examiners who found severe to total occupational impairment with periods of stability and decompensation. The medical records establish the Veteran had repeated severe episodes of decompensation often requiring inpatient care, resulting in the inability to complete occupational mental tasks. She struggled with concentration and focus with stress often triggering decompensation, which caused bizarre behaviors such as agitation, mutism, and catatonia. Thereby resulting in the inability to maintain, or follow, a substantially gainful occupation. Accordingly, the evidence establishes that the Veteran's service-connected condition rendered her unable to maintain employment; thus, entitlement to TDIU, for accrued benefit purposes, is warranted. 2. Entitlement to DIC pursuant to 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. 38 U.S.C. § 1318. The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). In this case, the Veteran received service connection for bipolar disorder at 70 percent effective July 16, 2000, the day after separation from active service, which was increased to 100 percent effective April 8, 2011. As the Board finds the Veteran entitled to a TDIU based on her service-connected bipolar disorder, the evidence establishes a total rating based on TDIU from July 16, 2000 to April 8, 2011 and a total rating based on the schedular 100 percent rating for bipolar disorder from April 8, 2011 to her time of death. Thus, the grant of entitlement to TDIU, effectuated entitlement to DIC under 38 U.S.C. § 1318 as the statutory duration requirements are now met. Accordingly, entitlement to DIC under 38 U.S.C. § 1318 is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.