Citation Nr: 21023488 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 96-42 144 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) pursuant to 38 C.F.R. § 4.16(b) from March 18, 1995 to July 15, 2015 is granted. The issue of dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is granted. FINDINGS OF FACT 1. From March 18, 1995, (the date of the Veteran’s claim for an increased rating for the right ankle), to July 15, 2015, (the day before the Veteran’s death) the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities, namely his right ankle disability, precluded him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 2. The Veteran was in receipt of a TDIU for at least 10 years preceding his death. CONCLUSIONS OF LAW 1. The criteria for a TDIU pursuant to 38 C.F.R. § 4.16(b) from March 18, 1995 to July 15, 2015 are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. 2. The criteria for DIC benefits 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 served on active duty from August 1955 to August 1959. The Veteran died in July 2015. The appellant is the Veteran’s surviving spouse. In a February 2017 notification letter, the Regional Office (RO) of the Department of Veterans Affairs (VA) recognized the appellant as a substitute claimant for the purposes of continuing the Veteran’s VA compensation claim that was pending at the time of his death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 1995 and November 2015 rating decisions. The issue of a TDIU was raised as part and parcel of the Veteran’s March 18, 1995, increased rating claim for residuals of a right ankle fracture (right ankle disability), from which in a September 1995 rating decision, the RO continued a 30 percent rating for the right ankle disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran timely appealed the September 1995 rating decision. In July 2001, the Board denied a higher rating for the right ankle disability. In a January 2003 Order, pursuant to a December 2002 Joint Motion, the United States Court of Appeals for Veterans Claims (Court) vacated the July 2001 Board decision and remanded it for readjudication consistent with the Joint Motion. In August 2004, April 2007, April 2009, and April 2010, the Board, in pertinent part, remanded the increased rating claim for the right ankle. In a July 2014 decision, the Board, in pertinent part, denied a higher for the right ankle disability and remanded the issue of a TDIU. In November 2018, the Board remanded the appeal for further development. Specifically in November 2018, the Board remanded the appeal for referral to the Director of the Compensation for consideration of whether a TDIU was warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 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. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. 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. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Turning to the facts, the appellant contends that prior to the Veteran’s death in July 2015, he was unable to maintain or obtain gainful employment due to his service-connected disabilities. As indicated above, the TDIU claim was part and parcel of the increased rating claim for the right ankle disability. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The increased rating claim was filed on March 18, 1995. The earliest a TDIU may be awarded in this case is March 18, 1995, as that is the date of the Veteran’s claim for an increased rating for the right ankle disability. 38 U.S.C. § 5110(b)(2) (prior to 2012); 38 C.F.R. § 3.400(o)(2). The question becomes whether the Veteran is entitled to a TDIU from March 18, 1995 to July 15, 2015, the day before the Veteran’s death. Prior to the Veteran’s death, his service-connected disabilities included a right ankle disability (rated as 30 percent disabling since January 7, 1994) and major depressive disorder (rated as 30 percent disabling since November 3, 1997). The Veteran’s combined rating was 30 percent from January 7, 1994, and 50 percent from November 3, 1997. A TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). Under 38 C.F.R. § 4.16(b) all cases where a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability should be referred to the Director of Compensation. Therefore, in November 2018, the Board remanded the claim of a TDIU to the RO for referral to the Director of Compensation for a determination on whether the Veteran was entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In January 2020, the Director of Compensation rendered an advisory opinion regarding extraschedular consideration under 38 C.F.R. § 4.16(b). The Director found that although the Veteran had right ankle pain and that his acquired psychiatric disorder caused decreased work efficiency, the Veteran’s nonservice-connected disabilities had a “larger impact on the Veteran’s ability to work.” Although the Board is required to obtain an opinion from the Director of Compensation before awarding an extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s opinion or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Thus, as the issue of a TDIU pursuant to 38 C.F.R. § 4.16(b) has been remanded and referred to the Director and an opinion was rendered on the matter, the issue is now before the Board and must be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321(b)(1)] on appeal”). The Board notes that during the applicable period on appeal, the Veteran had several limitations and required the assistances of others due to his nonservice-connected disabilities, such as his residuals from strokes. For examples, VA examinations and treatment records show that the Veteran required the assistances of others for feeding and bathing, had difficulty getting in and out of a vehicle, and that he cognitive disturbances, in part, due to his residuals from strokes. See VA examination reports (October 2000; December 2007). To this extent, the evidence is not clear as to how much of the Veteran’s service-connected disabilities, specifically his right ankle, contributed to his limitations and required the assistances of others. Furthermore, regardless of the limitations caused by the Veteran’s nonservice-connected disabilities, the evidence shows that his right ankle disability caused severe sedentary and physical limitations that negatively impacted his ability to obtain and maintain employment, which will be discussed below. For the reasons explained below, from March 18, 1995 (the date of the Veteran’s claim for an increased rating for the right ankle) to July 15, 2015, the evidence is at least evenly balanced as to whether the Veteran’s service-connected right ankle disability, precluded him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. The evidence shows that the Veteran had limited education, as he had a tenth-grade high school education and limited occupational experience. See employability evaluation report (March 2020). For example, the Veteran was last employed in 1975. See Veteran’s Application for Increased Compensation Based on Unemployability (May 2020). His occupational experience included a taxicab driver and a forklift operator from 1967 to 1973; he was also employed at a rent-car business and was a janitor from 1974 to 1975. Id. The appellant contends that the Veteran was unemployed due to his right ankle disability, as he had difficulty walking, and was greatly hampered by his depression. During the Veteran’s lifetime, he reported that he was unemployable due to his right ankle pain, which also caused depression. See VA examination report (April 1999). From March 18, 1995 to July 15, 2015, the Veteran reported severe right ankle pain, difficulty walking, and that upon repetitive use of the right ankle, he had increased pain. See, e.g, VA examination report (September 2006). He also stated that he had limited walking due to his right ankle disability. Id. The medical evidence shows that on March 18, 1995, the Veteran submitted a medical statement for consideration for aid and attendance or housebound for degenerative joint disease of the right ankle. The physician indicated that the Veteran required crutches or a cane and brace for his right ankle disability. VA treatment records and VA examinations as early as July 1995, reveal that the Veteran had right ankle arthritis, severe right ankle pain, he required the use of crutches, and that he walked with a limp. See VA examination reports (July 1995; October 2000; September 2006; May 2013). Upon physical examination, as early as July 1995, the Veteran had limitation of motion of the right ankle, no active motion of the right ankle, and pain during range of motion testing. See VA examination reports (July 1995, October 2000, September 2006; May 2013). Specifically, during the October 2000 and September 2006 VA examinations, the examiners indicated that upon examination of the right ankle, there was no active movement of the right ankle upon flexion and extension testing. Also, the VA examination reports show that the Veteran had limited passive range of motion of the right ankle. For example, at the October 2000 VA examination, passive range of motion of the right ankle was limited to 10 degrees with severe pain. At the September 2006 VA examination, his flexion was limited to 20 degrees and extension was limited to 5 degrees. Additionally, the VA examiners found that the Veteran’s right ankle disability caused physical limitations. For example, the July 1995 VA examiner stated that the Veteran had “some difficulty getting around” due to his right ankle disability. The September 2006 VA examiner stated that the Veteran’s activities of daily living were affected due to his right ankle disability. The September 2006 VA examiner noted that the Veteran was previously employed as a taxicab driver; however, he developed right ankle pain and required a right ankle brace. There are VA opinions of record that found that the Veteran’s right ankle disability did not impact his physical activity or his ability work. See, e.g., VA examination report (October 2000). Notably, the opinion providers did not consider the Veteran’s subjective reports of severe ankle pain and the impact it had on his functional ability. See, e.g., VA examination report (October 2000). In fact, the October 2000 VA examiner specifically stated that “the clinical evidence does not support the severity of pain complaints.” There is one opinion that found that the Veteran’s service-connected disabilities precluded his ability to secure and follow substantially gainful occupational from “at least November 1997 to his death in July 2015.” Specifically, in a March 2020 employability evaluation report, a vocational consultant indicated that she reviewed the Veteran’s claims file, interviewed the appellant, and found that the Veteran’s service-connected disabilities precluded him from physical demands of sedentary work. The vocational consultant explained that she based her opinion on the Veteran’s medical records which indicated that the Veteran’s right ankle disability caused excess fatigability, difficulty walking, and interference with sitting, standing, and weight bearing. The vocational consultant also indicated that the Veteran’s constant pain impacted his ability to concentrate and focus on tasks which would have precluded his ability to sustain adequate pace and productivity in the workplace. Additionally, the vocational consultant discussed the Veteran’s relevant medical records and cited to medical literature in support of her opinion. In sum, the evidence shows that the Veteran had limited education, as he did not have a high school diploma. The evidence also reveals that the Veteran had limited occupational experience; his previous employments required prolonged sitting (when he was a taxicab driver) or physical activity (as he was employed as a fork-lift operator and janitor). The medical and lay evidence shows that the that the Veteran has suffered a longstanding history of severe right ankle pain and problems; he has been unemployed since 1975. The Veteran required a walker or a cane and brace due to his right ankle disability. The VA examinations illustrated that the Veteran had no right ankle active range of motion and limited right ankle passive range of motion. As such, the evidence indicates that the Veteran would be precluded from sedentary and physical employment, as he had limited or no range of motion of the right ankle, required ambulation, had severe right ankle pain, and had increased right ankle pain when walking. Notably, the vocational consultant also indicated that the Veteran’s constant pain impacted his ability to concentrate and focus on tasks which would have precluded his ability to sustain adequate pace and productivity in the workplace. Furthermore, as to any type of non-physical occupational, the Veteran did not have any background or skill set related to a sedentary type employment, as his occupational background consisted of a taxicab driver, a fork-lift operator, and a janitor. Therefore, the evidence reflects that the functional limitations caused by the Veteran’s service-connected disabilities, namely his right ankle disability, precluded gainful employment consistent with his education and occupational experience. Although there are some medical opinions to the contrary on the question of employability, this determination is ultimately an adjudicatory and not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). For these reasons, and resolving reasonable doubt in the appellant’s favor, a TDIU, pursuant to 38 C.F.R. § 4.16(b), from March 18, 1995 to July 15, 2015 is warranted. DIC Benefits under 38 U.S.C. § 1318 VA death benefits may be paid to a deceased veteran’s surviving spouse or children in the same manner as if the veteran’s death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and, in part, was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a)(2)(i). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). As noted above, the Veteran died in July 2015. In the decision above, the Board awarded a TDIU from March 18, 1995 to July 15, 2015. Thus, the Veteran would have been in receipt of a TDIU for at least 10 years preceding his death in July 2015. Thus, pursuant to 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a)(2)(i), the durational requirements for DIC under 38 U.S.C. § 1318 are satisfied. Therefore, DIC benefits under 38 U.S.C. § 1318 is warranted. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.