Citation Nr: 21030080 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-26 929 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, for accrued benefits purposes is denied. FINDING OF FACT The Veteran did not meet the criteria for a TDIU rating, and his service-connected disabilities alone did not prevent him from obtaining and sustaining employment. CONCLUSION OF LAW The criteria for a TDIU rating are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.1000, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1958 to February 1967. The Veteran was trained as a paratrooper and served in Germany and Korea but not in Vietnam. The Veteran died in June 2008, and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a Travel Board hearing in St. Petersburg, Florida before Veterans Law Judge (VLJ) Michael Herman in January 2008 regarding the issue of TDIU. In February 2012, the appellant testified during a Travel Board hearing in St. Petersburg, Florida before VLJ Marjorie Auer regarding entitlement to service connection for cause of death, as well as accrued benefits for entitlement to service connection for thighbone spiral fracture of the left femur, accrued benefits for entitlement to a temporary total rating due to convalescence, and accrued benefits for entitlement to a TDIU rating. VLJs who conduct hearings must participate in making the final determination of a claim. See 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2019). Where two VLJs hold hearings on the same issue, a three-judge panel is assigned, and the appellant must be afforded an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Because testimony was given to two different VLJs regarding entitlement to a TDIU rating, a letter was sent to the appellant notifying her that she had the option of having a third hearing with a VLJ who would be assigned to the panel to decide her appeal pursuant to the Court's holding in Arneson. Accordingly, in September 2018, the appellant testified at a videoconference Board hearing before VLJ John Francis regarding the issue on appeal. Transcripts of all three hearings are associated with the record. The appeal was last before the Board in January 2020, when the appellant's claims for entitlement to service connection for a thigh bone spiral fracture, for accrued benefits purposes, entitlement to a temporary total rating under 38 C.F.R. § 4.30 for convalescence due to a thigh bone spiral fracture, left hip, for accrued benefits purposes, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes, and entitlement to service connection for the cause of the Veteran's death were denied. The appellant appealed only the Board's denial of entitlement to a TDIU rating, for accrued benefits purposes, to the United States Court of Appeals for Veterans Claims (Court). By Order dated November 2020, the Court vacated only the Board's January 2020 denial of entitlement to a TDIU rating and remanded the matter to the Board for compliance with the instructions included in the October 2020 Joint Motion for Remand (JMR) by the parties. Accrued Benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000(a) (2019). Persons eligible for accrued benefits are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a) (2019). In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). The appellant submitted a claim for accrued benefits in July 2008. A September 2008 rating decision and notification letter denied entitlement to accrued benefits. The appellant submitted a notice of disagreement in December 2008. A statement of the case was thereafter issued in April 2010, and the appellant filed a timely substantive appeal (VA Form 9) in May 2010. Consequently, the appellant has met the threshold requirement of the claims for the purpose of accrued benefits and the Board will address the claims on the merits. The Board can only consider evidence in the claims file or constructively in VA's possession at the time of death. See Ralston v. West, 13 Vet. App. 108, 113 (1999). TDIU 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. See 38 C.F.R. § 4.16. A finding of total disability 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." See 38 C.F.R. § § 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § § 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, for accrued benefits purposes Prior to his death, the Veteran asserted that his service-connected disabilities prevented him from obtaining and sustaining substantially gainful employment. From August 2004, the Veteran was service-connected for residuals of a left ankle fracture, evaluated as 20 percent disabling; degenerative changes of the right ankle, evaluated as 20 percent disabling; residuals of a left shoulder dislocation, evaluated as 20 percent disabling; right hip degenerative arthritis, evaluated as 10 percent disabling; right knee degenerative arthritis, evaluated as 10 percent disabling; and bilateral hearing loss, determined to be noncompensable. His combined disability rating was 60 percent. As explained in more detail below, the Veteran had nonservice-connected diabetes and complications from his nonservice-connected diabetes, to include Charcot joints and lower limb amputation. These disabilities cannot be considered when determining whether the Veteran met the criteria for a TDIU rating. In this case, the Veteran did not meet the schedular requirements for TDIU. When the schedular TDIU requirements are not met, as in this case, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b). In this regard, the Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16(b) states that "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the" schedular TDIU requirements. Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted. A VA examiner in February 2002 noted that the Veteran required the use of a cane for mobility. In May 2003, a VA examiner noted that the Veteran had been hospitalized for foot ulcerations and had started using a wheelchair. March 2005 private treatment records reflect that the Veteran had left ankle painful motion, but no instability. Right ankle instability was found. The treating physician recommended an increased rating only for the right ankle due to instability. The Veteran attended a VA examination in February 2006 for his ankles. He reported constant pain at 3/10 on the pain scale, and flare-ups of pain 5-6 times weekly at 9/10 on the pain scale. He stated that his flare-ups were about one minute in length, during which time he avoided standing. The Veteran reported that his ankle disabilities caused him to use a scooter and prevented him from standing to perform activities. He stated that he used morphine to help with pain. Examination revealed that the Veteran had an ulcer at the bottom of his right foot. Bony enlargement was visible on his left ankle. A February 2006 VA examiner noted that the Veteran used a cane or electric wheelchair for mobility more than a few feet because of his ankles, he could not stand because of pain, and he could not reach up to screw in a light bulb because of his shoulder. The Veteran filed a claim for entitlement to a TDIU rating in April 2006. He stated that his ankles, feet, back and shoulder prevented him from working, and that he last worked in 2002 as an inventory manager in a VA medical facility. His job in inventory required the use of a computer and physical inventory of supplies. See January 2008 Board hearing transcript. The Veteran's claim form also reflects that he completed two years of college. A prior co-worker submitted correspondence in April 2006, stating that towards the end of his career, it became increasingly difficult for the Veteran to walk long distances and perform increased physical labor associated with his position, leading the Veteran to retire early. She expressed disappointment that the Veteran retired because he was very knowledgeable and a dedicated worker in critical programs. The Veteran's previous supervisor submitted correspondence in April 2006. He stated that the Veteran was unable to perform increased physical requirements of the position. He stated that other than the Veteran's physical inabilities he had a "stellar career." May 2006 VA treatment records reflect that the Veteran was "treated multiple times for bilateral Charcot joints with recurrent twisting injuries occurring because of [Veteran's] insulin dependent diabetes and severe peripheral neuropathy." The Veteran reported that he was unable to feel his feet and received debridement to his wounds mostly without sensation. The Veteran attended a VA examination for his joints in July 2006. He stated that he used a scooter for ambulation. The Veteran told the examiner that he was advised against weight bearing on his feet because of the bilateral diabetic foot ulcers, which he had for the last several years. He told the VA examiner that he retired from his job and needed assistance from coworkers with activities which involved bending. When asked if he wanted to do anything else after his retirement, he told the examiner, "not really." The Veteran told the examiner that his left shoulder caused difficulty with picking items up on a shelf or climbing ladders. He denied flare-ups. The Veteran reported right hip pain that was managed with medication. The Veteran also reported right knee pain and stiffness when sitting for long periods of time. The examiner noted that the Veteran had multiple medical problems, including diabetes mellitus type 2, coronary artery disease, congestive heart failure, diabetic foot ulcers, Charcot foot secondary to diabetes, hypertension, and diabetic nephropathy. The examination revealed no instability of the knees, ankles, hip or shoulder. The examiner noted that the Veteran did not look stable to walk, "especially with his diabetic ulcers." The examiner determined that the Veteran's service-connected joint disabilities would not affect his occupation because he was not working and did not intend to work. The examiner determined that if he was able to consider all of the Veteran's medical problems, then he would definitely not be able to maintain gainful employment, however, with consideration only to his service-connected conditions, it was likely he could perform work that was not physical in nature. The Veteran attended a VA audiology examination in September 2006. Though sensory hearing loss was found, the results did not amount to a compensable rating. The Veteran reported a constant ringing and difficulty hearing high pitch sounds. The Veteran was not service connected for tinnitus. November 2006 VA treatment records reflect that the Veteran "always" had the ability to understand. In October 2006 correspondence, the Veteran stated that he was entitled to a TDIU rating because he was unable to walk or stand and was using an electric chair. The Veteran's nonservice-connected diabetes led to a right below-the-knee amputation in June 2007. See December 2007 VA treatment records. August 2007 VA treatment records reflect that the Veteran suffered from Charcot of the left foot with instability. November 2007 VA treatment records reflect that the Veteran had no barriers to communication. December 2007 VA treatment records reflect that the Veteran suffered an injury to his left hip when he tried to transfer from an electric scooter to a manual wheelchair, and the wheelchair fell on top of him, resulting in a left hip fracture. His left lower extremity did not show signs of edema and was able to dorsi and plantar flex without difficulty. Corresponding medical notes reflect that the Veteran used a scooter, "for primary mobility due to also being a [right below the knee] amputee." He underwent a left hip hemiarthroplasty shortly thereafter. VA outpatient treatment records in 2007 and 2008 showed prescriptions for opiod pain medication for short periods (from one day to not more than one month from April 24, 2008 to May 24, 2008) following surgical procedures but these medications did not appear on lists of on-going prescriptions. The Veteran attended a Travel Board hearing in January 2008. He testified that he was taking narcotics to treat pain. He also stated that he was using a scooter for mobility and currently in occupational therapy to help him transfer to and from the scooter. The Veteran testified that he left his job in 2006 because he was unable to walk. He stated that he would be unable to work in another position because of the medication he was taking. During the hearing, the appellant also provided testimony. She stated that the Veteran's left ankle had a tendency to "give out." VA treatment records prior to the Veteran's death in June 2008 do not reflect that the Veteran had any communication barriers due to his hearing loss. During a February 2012 Travel Board hearing, the appellant testified that the Veteran retired because he could no longer walk and was unable to support his weight. At the appellant's videoconference Board hearing in September 2018, the appellant again testified that the Veteran stopped working because of his mobility issues. She also stated that the Veteran fell out of his wheelchair in Riga, Latvia, when visiting relatives because of various service-connected disabilities, which may have contributed to his death. However, in the January 2020 decision, the Board determined that entitlement to service connection for cause of death was not warranted and the appellant did not appeal the denial. In the January 2020 Board decision, entitlement to service connection for a thigh bone spiral fracture secondary to the Veteran's service-connected left ankle disability was also denied, based on the determination that the Veteran's service connected left ankle disability did not cause instability. Instead, instability was due to the Veteran's nonservice-connected diabetes complications. The Board acknowledges the Veteran's service-connected disabilities had some effect on his occupational functioning as represented by the combined 60 percent rating; however the preponderance of the evidence does not support his contentions that his service-connected ankle, shoulder, hip, knee, and hearing loss disabilities individually or in combination precluded his participation in all forms of substantially gainful employment consistent with his education, skills and work experience. While the lay evidence has been considered, the Board ultimately affords more probative weight to the Veteran's July 2006 VA examination, which found that the Veteran's service-connected disabilities alone would not prevent him from working. The evidence of record indicates that the Veteran's service-connected disabilities resulted in occupational impairment and a 60 percent combined disability rating. In this regard, 38 C.F.R. § 4.1 provides that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses." The 60 percent combined disability rating therefore contemplated and compensated the Veteran for the occupational impairment from his service-connected disabilities. Pursuant to the October 2020 JMR, the Board acknowledges that the Veteran was confined to a scooter and unable to walk or stand, however, the medical evidence suggests that this was largely due to his complications from diabetes. Additionally, although his service-connected disabilities alone may have restricted manual labor, there is insufficient evidence that the Veteran would have been unable to perform different forms of employment, particularly in positions requiring only office and computer skills with knowledge of inventory and purchasing procedures. There is no probative evidence that his service-connected disabilities alone prevented him from leaving his home and travelling independently abroad which indicates a substantial degree of function notwithstanding mobility limitations. There is no indication from the treatment records that the Veteran's hearing loss impacted his ability to communicate with others and would have prevented him from gainful employment. He was able to use administrative tools such as a telephone and computer. The probative evidence of record suggests that his service-connected disabilities alone would not have prevented him from using his educational and employment background towards working as a scheduler, purchasing agent, timekeeper, preparer of manifests, or customer service representative where he would use limited physical exertion. This is further supported by the April 2006 employer letter which stated that aside from the physical limitations the Veteran was a successful employee. Although the Veteran reported that his pain mediation affected cognitive performance, he was able to negotiate the overseas travel, and clinicians did not note any cognitive shortcomings because of the effects of medication. VA treatment records reflect no barriers to his ability to communicate due to hearing loss or medication. The Board recognizes that the Veteran had significant disabilities, but in order to meet the criteria for a TDIU rating, the evidence must reflect that the Veteran's service-connected disabilities alone prevented gainful employment. Accordingly, the criteria for a TDIU for accrued benefits purposes are not met, and the appellant's claim therefore must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.