Citation Nr: 1801254 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-34 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1986, earning the Air Force Longevity Service Award. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a ratings decision the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri issued in October 2014. In March 2013, the RO issued a rating decision that denied TDIU, and continued ratings for service-connected (1) coronary artery disease at 60 percent disabling, and (2) a thoracolumbar spine disability at 10 percent disabling. In October 2014, the RO issued a rating decision that denied TDIU again. In February 2015, the Veteran's accredited representative filed a timely Notice of Disagreement. In July 2016, the RO issued a Statement of the Case (SOC). In December 2017, the Veteran's representative filed an appellate brief. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's service-connected disabilities and corresponding ratings are currently coronary artery disease, rated as 60 percent disabling; a thoracolumbar spine disability, rated as 10 percent; tinnitus, rated as 10 percent; residual fractures and scars of the hand, rated as 0 percent; residuals of right and left hernias, rated as 0 percent; lip scars, rated as 0 percent; and scalp scars, rated as 0 percent. The combined evaluation for the Veteran's service-connected disabilities has been 70 percent from November 23, 2010. 2. The Veteran is rendered unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a) (2017). Here, the RO provided the Veteran a VA examination for compensation in March 2013 and multiple visits to or contacts with VA providers since, as VA medical notes report in the Veteran's claims file. The examination reports and notes are thorough and supported by the evidence of record. They discuss the clinical findings, treatment history, and the Veteran's reported symptoms. The examination reports also discussed the functional losses caused by the Veteran's disabilities. II. Entitlement to TDIU Total disability based on unemployability exists where there is present any impairment of mind and body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining if there is one 60 percent disability, multiple disabilities resulting from a common etiology will be considered as one disability. Id. It is VA policy that all veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factors to consider are the veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991); see also, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment, and shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). A high disability rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. However, the question in a TDIU case is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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. See Van Hoose, 4 Vet. App. at 363. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 III. Analysis - TDIU First, the Veteran met the schedular requirements for TDIU in an appealed October 2014 rating decision by his heart disability alone or combining the following service-connected disabilities and corresponding ratings: coronary artery disease, rated as 60 percent disabling; a thoracolumbar spine disability, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. Second, the pertinent question is whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment, not whether he could find employment generally or marginally. The Board finds that they did because the Veteran meets the TDIU schedular criteria under 38 C.F.R. § 4.16(a) and his employment has been marginal due to his service-connected disabilities. For the entire period on appeal, the Veteran has indicated he worked part-time during tax-filing season for several years preparing tax forms, which is marginal employment, not substantial gainful employment consistent with his education, experience and training as an air craft maintenance specialist, both during and after service. The Veteran is educated to a B.A. in business management, and to service aircraft, as his long military and post-military career illustrates; seasonal tax preparation or related work, while he has performed it, differs substantially. He noted to a February 2014 VA cognitive examiner, in a progress note, that his income consists of Social Security, VA disability and part-time work. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). The Veteran indicated approximate gross earnings of $5,500 annually based on his seasonable tax preparation work when he requested TDIU, far below the earned income threshold. The Board finds the Veteran competent to report his prolonged seasonable employment, hours and earned income, and lends his statements substantial weight in judging his claim of his inability to work gainfully when requesting TDIU. He has generally complained of fatigability or dyspnea, and pain upon sitting for prolonged periods, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His work history shows no work other than seasonable tax preparation since requesting TDIU. The Board finds these reports credible and lends them great weight on the question of gainful employability. The Veteran's disability picture appears to have remained relatively consistent since requesting TDIU initially. In April 2016, the Veteran complained of regular chest pains to a VA provider who noted it and his decreased mobility, sometimes requiring use of a cane. In both March 2015 and November 2015, the Veteran was noted to have complained of dyspnea requiring he cease walking after only five to ten minutes regularly, although the VA provider informed the Veteran it was less likely than not related to heart failure. A February 2014 VA cognitive examiner noted no memory loss that would be congruent with conditions such as Alzheimer's disease, but noted episodes of the Veteran's blurred vision. In September 2013, in discussing an image of the Veteran's heart, a VA provider during a heart stress test noted an abnormality suspicious for apical infarct or heart attack. In March 2013, a VA examiner opined that the Veteran's "heart disease and lumbar spine condition permanently impact/prevent physically active, but not sedentary employment," as he noted also the Veteran's recorded heart attacks in 1995 and 2004-but provided no further rationale about the Veteran's employment as a marginal tax preparer, seasonally employed. However, the March 2013 examiner noted that on a February 2013 form the Veteran indicated he could no longer work due to his service-connected heart and back disabilities. Additionally, the March 2013 VA examiner noted the Veteran has functional loss due to his service-connected thoracolumbar spine disability. The Board finds the VA March 2013 VA examiner, February 2014 VA examiner and other medical professionals notating the Veteran's symptoms on presenting himself competent to assess them due to their respective training, education and professional licensures. Moreover, the Board finds them credible due to their experience evaluating patients; and lends their opinions weight that opine the Veteran's symptoms did not appear to worsen over the appellate period, suggesting the Veteran has been able to work when examined, at least seasonably or in limited sedentary work, especially since his cognitive abilities do not appear impaired. Id. The March 2013 examiner in particular noted that the Veteran could not squat or bend, uses a cane for stability, and can walk short distances, and could only ambulate up and down a few stairs. Moreover, the March 2013 examiner noted only half the normal lateral extension, flexion and rotation with respect to the Veteran's back. The February 2014 examiner also reported that the Veteran's wife and daughter had noted his forgetfulness and difficulty learning work tools such a software, leading to increased mistakes in his marginal work. However, the Board affords the Veteran the benefit of the doubt and finds the medical evidence sufficient to support his requested TDIU. In weighing the evidence in totality, the Board finds it shows itself at least in equipoise as to whether the Veteran has been able to obtain and maintain substantially gainful employment, as opposed to only marginal employment. The evidence of record illustrates the Veteran is and has been for years working only as a seasonal tax preparer, unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the rest of the year, as implied by the record showing no other form of employment in the non-tax season or attempts to secure it. Nothing in the record suggests the Veteran purposefully unemployed himself during the non-tax season; and the record does show some not insignificant impairment due to his service-connected disabilities. The ultimate authority to determine whether TDIU criteria have been met rests with the Board. 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"). Accordingly, entitlement to TDIU is warranted considering the Veteran's 60 percent coronary disease disability rating and other service-connected disabilities combining to establish schedular TDIU, including a lumbar spine disability and tinnitus, each rated at 10 percent disabling. 38 U.S.C.§ 5107(b). The Board is aware that for a portion of the appellate period, the Veteran was employed in a sedentary position. However, review of the file indicates that such was either not substantially gainful employment, or could not be retained gainfully year-round, and thus the second part of the TDIU analysis is met. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the Veteran is rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities given that the Veteran has only been marginally employed during the appeal period. The Board concludes the evidence is at least in relative equipoise as to whether the Veteran is unable to secure or maintain substantially gainful employment and, therefore, entitlement to TDIU is warranted. In assigning an effective date, the Board recognizes that his initial claim for entitlement to TDIU was not received by the RO until March 2011, and the record does not imply TDIU prior to the Veteran first indicating he could no longer work gainfully. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather ... an attempt to obtain an appropriate rating for a disability or disabilities"). Entitlement to a TDIU is warranted because the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER Entitlement to a TDIU is granted, subject to the rules and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs