Citation Nr: 1611928 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 14-28 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Ivey-Crickenberger, Associate Counsel INTRODUCTION The Veteran served on active duty May 1964 to September 1964 and from May 1968 to August 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Affording him the benefit of the doubt, the Veteran is unemployable due to his service-connected heart disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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 at 60 percent or more, and that, if there are two or more such 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). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Here, the Veteran meets the schedular criteria for consideration of a TDIU for the entire appeal period, as he is assigned a 60 percent rating for coronary artery disease and a 10 percent rating for hypertension, with a total combined evaluation of 60 percent. As these disabilities affect a single body system, they together constitute "one 60 percent disability" for TDIU purposes. Id. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See 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"). The Veteran was afforded VA examinations in September 2012 to evaluate his employability and his hypertension. The VA examination reports are adequate, because they are based on the Veteran's medical history and they describe the disabilities in sufficient detail so that the Board's decision is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The VA examiner evaluated the current severity of the Veterans service-connected heart conditions, in part, by conducting an interview-based metabolic equivalents (METs) test. The Veteran reported dyspnea and fatigue at the lowest METs activity level, which corresponds with light intensity physical activities such as eating, dressing, taking a shower, and slow walking (2 mph) for one to two blocks. Even so, the VA examiner opined that the Veteran would be able to maintain substantially gainful employment in light manufacturing. Despite the VA examiner's conclusion, the Veteran's METs results are suggestive that he would have trouble maintaining substantially gainful employment in many, if not most, industries. Two letters, received from medical provider S.H. in September 2014 and from Dr. W.H. in February 2015, reflect that the Veteran has many medical problems that impair his ability to work, including significant coronary artery disease and hypertension. No other conditions are cited. Both S.H. and Dr. W.H. state they are very doubtful that the Veteran would ever be able to physically do any type of job due to the severity of his chronic medical conditions. The Board finds that the preponderance of the evidence reflects the Veteran is not employable; however, the Veteran's limitations are not due solely to his service-connected heart conditions. The Veteran also suffers from severe chronic obstructive pulmonary disease (COPD) and peripheral vascular disease, neither of which are service-connected. As noted above, VA generally does not consider a Veteran's nonservice-connected disabilities in determining a Veteran's employability. The September 2012 VA examiner indicated, however, that it was not possible to accurately determine the extent to which the Veteran's service-connected disabilities, alone, impacted his limitations. The VA examiner did surmise that, everything else being normal, the Veteran's heart conditions alone would probably result in a METs score of seven, which corresponds with more vigorous activities, but added that there is no scientific way to apportion METs. Accordingly, the Board is unable to unequivocally conclude that the Veteran's physical limitations are clinically dissociated from his service-connected heart conditions. Therefore, the Board has no discretion but to consider those symptoms as part of his service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition). Such an interpretation is in keeping with VA's well-established policy of affording the claimant the benefit of the doubt when the favorable and unfavorable evidence of record is in relative equipoise. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Affording the Veteran the benefit of the doubt, he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities. As such, a grant of TDIU is warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, TDIU is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs