Citation Nr: 21077230 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-49 349 DATE: December 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to a rating in excess of 40 percent for a service-connected back disability based on extraschedular consideration is dismissed as moot Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is granted. Entitlement to DIC based on service connection for the cause of the Veteran's death is dismissed as moot. FINDINGS OF FACT 1. For the entire appeal period from January 16, 2007, the Veteran's service-connected back disability rendered him unable to secure and follow a substantially gainful occupation. 2. As the Veteran has been assigned a TDIU for the entire period on appeal, the issue of entitlement to an extraschedular rating for a service-connected back disability is moot. 3. At the time of death, the Veteran was entitled to receive compensation for service-connected disability that was rated by VA as totally disabling for a period of at least 10 years immediately preceding death. 4. As the Board herein grants DIC under 38 U.S.C. § 1318, the appeal for service connection for the cause of the Veteran's death is moot. CONCLUSIONS OF LAW 1. The criteria for a total disability rating based on a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (b). 2. The appeal for an extraschedular rating in excess of 40 percent for a service-connected back disability is moot. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 3. The criteria for DIC under 38 U.S.C. § 1318 have been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 4. The appeal for service connection for the cause of the Veteran's death is moot. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1955 to September 1957. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2017 (increased rating for the service-connected back disability) and October 2018 (service connection for cause of death) rating decisions. The Veteran died in December 2017. The Appellant is the Veteran's surviving spouse, who has been accepted as the Veteran's substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Finally, a claim for DIC under 38 U.S.C. § 1318 has been added to the appeal. The Appellant filed an initial application for DIC in February 2018. The Board finds that the claim for DIC under 38 U.S.C. § 1318 is a part of the Appellant's claim for DIC based on service connection for the Veteran's cause of death as it constitutes an alternate theory of entitlement to DIC benefits. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 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. 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 nonexertional) 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 they are 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). The Veteran was in receipt of a 40 percent rating for chronic low back strain with multilevel degenerative arthritis. Because the Veteran's combined rating did not meet the percentage standards of 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16 (b). It is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Such an extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board remanded the appeal for referral to the Director of Compensation services for consideration under 38 C.F.R. § 4.16 (b). An Administrative Review of the claim for a TDIU was conducted by the Director, Compensation Service in January 2020. The Director of Compensation services recommended, in that decision, that a TDIU be awarded in accordance with 38 C.F.R. § 4.16 (b), effective January 16, 2007. A second advisory opinion from the Executive Director of Compensation service dated in January 2020 found that the evidence failed to support the contention that the Veteran's service-connected disability prevented employment. As the appeal for a TDIU under 38 C.F.R. § 4.16 (b) has been considered by the Director of Compensation service, the Board may now address whether a TDIU is warranted under 38 C.F.R. § 4.16 (b). For the reasons that follow, the Board finds that a TDIU is warranted. An April 2019 Application for Increased Compensation Based on Unemployability shows that the Veteran has a high school education and attended two years of post-secondary education. He last worked as a security guard in 1993 and stopped working due to his lumbar spine disability. The Veteran's ability to secure and follow a substantially gainful occupation was impacted by the physical effects of his service-connected back disability. He has been in receipt of Social Security disability benefits since July 1993. A February 1995 SSA determination shows that due to the Veteran's back disability, tendinitis in the left knee, and depression, he was limited to sedentary work. However, sedentary work was ultimately untenable because he "did not acquire any skills which would be transferrable to sedentary work." A January 2011 VA examination shows that the Veteran's back disability had severe effects on the ability to perform chores or participate in recreation, and prevented participation in sports. An October 2013 Disability Benefits Questionnaire shows that the Veteran had severe pain that made movement, standing, bending, and walking painful. An April 2014 private medical opinion from Dr. P.C. shows that the historical and current severity of the Veteran's symptoms were consistent throughout the record and would have certainly prevented him from gainful employment even in a sedentary position. A June 2019 opinion from T.D., a vocational expert, shows, based on a review of the record, that the Veteran has been unemployable since 1993. The Appellant was interviewed and described the Veteran's history of injury and symptoms. It was noted that the Veteran was not independent with his activities of daily living and needed help with bathing and dressing. Specific findings from the Veteran's VA treatment record and VA examinations were also discussed. May 2019 and February 2021 opinions from Dr. P.C. show that the Veteran was very limited in what he was able to do the last 10 years of his life according to the Appellant. He needed help with dressing and could only sit or stand to half-an-hour to 45 minutes at a time. He could only walk a short distance. The opinions, show, based on a review of the record, that due to back pain and frequent exacerbations of severe pain necessitating the use of muscle relaxants and opioid pain medications, the Veteran's lumbar spine disability alone prevented him from maintaining even sedentary employment from 1993. Vocational and medical opinions show that the Veteran was unable to work due to his service-connected back disability. Given the forgoing, the Veteran's service-connected back disability precluded him from securing and following substantially gainful occupation consistent with his education, skills, training, and work history. Thus, for the entire appeal period from January 16, 2007, entitlement to a TDIU, on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), is granted. 2. Entitlement to a rating in excess of 40 percent for a service-connected back disability based on extraschedular consideration The Federal Circuit's holding in Johnson v. McDonald, 762 F.3d 1362, 1365-6 (2014) indicates that the grant of a TDIU renders moot the issue of entitlement to an extraschedular rating because the regulatory gap that 38 C.F.R. § 3.321 (b)(1) is designed to fill does not exist when TDIU has been granted. Accordingly, the issue of whether the Veteran's service-connected back disability warrants an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 (b)(1) is moot, as he is now in receipt of a TDIU based on back impairment during the entire period on appeal. Therefore, the issue of entitlement to an extraschedular rating for a back disability must be dismissed as moot. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a veteran where it is shown that the veteran's death was not the result of willful misconduct, and at the time of death the veteran was receiving or was entitled to receive compensation for service-connected disability that was: (1) rated by VA as totally disabling for a period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for at least five years immediately preceding death; or (3) rated by VA as totally disabling for a period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. A Certificate of Death shows that the Veteran died on December [REDACTED], 2017. The record shows that at the time of death, the Veteran was service-connected for chronic low back strain with multilevel degenerative arthritis with a 40 percent rating effective January 16, 2007. Pursuant to this Board's decision, a TDIU was granted effective January 16, 2017. Accordingly, the Board finds that the Veteran was receiving or was entitled to receive compensation for service-connected disability that was rated by VA as totally disabling for a period of at least 10 years immediately preceding death and entitlement to DIC under 38 U.S.C. § 1318 is warranted. (Continued on the next page) 4. Entitlement to DIC based on service connection for the cause of the Veteran's death DIC benefits are also payable to the surviving spouse of a veteran if the veteran died from a service-connected disability 38 U.S.C. §§ 1310. Under 38 U.S.C. § 1318, in certain circumstances DIC benefits are payable to the surviving spouse of a veteran "in the same manner as if the veteran's death were service connected." As the Board herein grants DIC under 38 U.S.C. § 1318, such benefits have already been granted. Entitlement to service connection for the Veteran's cause of death is therefore moot, and the appeal as to this issue is, therefore, dismissed. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.