Citation Nr: 1802486 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-49 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to April 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded by the Board in August 2014 for an opinion as to whether the Veteran's service-connected disabilities render him unemployable because TDIU was raised by the record. In September 2015, the Board did not find substantial compliance and again remanded the case for an opinion that included all of the Veteran's service-connected disabilities, not just his coronary artery disease. The October 2016 examiner considered the Veteran's service-connected disabilities' effects on employment, in addition to the Veteran's coronary artery disease. Accordingly, the Board finds that the RO has substantially complied with the remand order. See Stegall v. West, 11. Vet. App. 268 (1998). In a November 2017 letter, the Board informed the Veteran who conducted his June 2014 Board hearing was no longer employed by the Board. In a correspondence received later the same month, the Veteran declined another Board hearing. FINDING OF FACT The Veteran's service-connected disabilities have not been shown to prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural duties Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran 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 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). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is competent to report symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 38 U.S.C. § 5107(b) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Following review of the record, the Board concludes that the criteria for compensation based on TDIU have not been met. The Veteran served as an aircraft mechanic non-commissioned officer in the United States Navy. In addition to training in aviation structural mechanics, the Veteran earned an Associate of Science degree in Engineering and Mathematics. After leaving the service, he reported worked as a truck driver for 10 years at Schneider National and then as a manager for Plantation Lakes for 5 years, part time. He reported he was unable to continue those positions due to his service-connected disabilities of phlebitis and coronary artery disease. The Veteran has service-connected disabilities of erysipelas and cellulitis of the right leg, rated at 10 percent, essential hypertension, rated at 10 percent, and thrombophlebitis of the left leg with erysipelas and cellulitis, rated at 10 percent. Additionally, the Veteran had coronary artery disease, rated at 60 percent from July 1, 2007 to October 16, 2014, and rated 100 percent from October 17, 2014. The Veteran's combined rating prior to October 17, 2014 is 70 percent, and 100 percent therefrom. In October 2014, the Veteran underwent an examination to assess his coronary artery disease and effect on employment. The examiner considered his treatment records, diagnostic testing, and the Veteran's subjective symptoms such as atypical (non-cardiac) chest pain. The examiner opined that the Veteran's coronary artery disease limits the Veteran to no heavy labor, but that he can do very light physical work, with no lifting or carrying greater than 20 pounds, no excessive walking and no running. Overall, the October 2014 examiner opined that the Veteran is able to do sedentary work. To support this opinion, the examiner cited the Veteran's ejection fraction of 55%, which he stated is the best indicator of the Veteran's current cardiac functional status, as it is a direct measurement of cardiac function. At the examination, the Veteran reported dyspnea, fatigue, angina, dizziness, and sweating. The examiner found that these symptoms were consistent with coronary artery disease and angina, and that these symptoms were consistent with activities such as eating, dressing, taking a shower, and slow walking. As the examiner did not specifically address all of the Veteran's service-connected disabilities, the Board found that there had not been substantial compliance with its prior remand directives. As such, it remanded in September 2015 for another opinion considering the effects on employment of all of the Veteran's service-connected disabilities. In May 2016, the President of one of the Veteran's prior employers, Plantation Lakes Condominiums, submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. This form indicates that the Veteran was employed there from June 2004 to September 2009 with duties of property management. It indicates that he worked 18 hours per week and earned $10,800.00 in his last 12 months of employment. The form also reflects that the Veteran lost no time in the last 12 months (September 2009 - September 2008) due to disability. The employer noted that no concessions were made to the employee due to disability and he was terminated because his services were no longer needed. In October 2016, another VA examiner, a physician, provided an opinion as to the Veteran's coronary artery disease and effects of the Veteran's service-connected disabilities on employment. The October 2016 VA examiner reproduced the 2014 VA examination report, to include the section stating that the Veteran should perform no heavy labor and is able to do very light physical work, with no lifting or carrying greater than 20 pounds, no excessive walking and no running. The October 2016 VA examiner added that it is not at least as likely as not that the Veteran's service-connected disabilities precluded employment, as most of the notes reflect stable coronary artery disease, with nuclear studies showing no evidence of ischemia, and echocardiogram showing normal ejection fraction. The examiner further notes that while the Veteran intermittently had episodes of chest pain over the years for which a workup was undertaken, no acute coronary syndrome was identified. The examiner opined that with the Veteran's cardiac history, he may not be able to tolerate medium to heavy physical demand, but he would not be precluded from sedentary activity. The examiner added that none of the cardiology notes on file show a recommendation for the Veteran to cease employment except for brief times following coronary artery bypass grafting. Further, the examiner opined that the Veteran's other conditions for which he is also service-connected, i.e. hypertensive vascular disease and post-phlebitic syndrome of the legs, may also preclude him from performing jobs which require prolonged standing, walking, squatting or climbing. The Board finds this opinion probative, as it is consistent with the medical record, considered the Veteran's statements and medical history, and considered the impact on employment of all of the Veteran's service-connected disabilities. In a December 2015 statement in support, the Veteran noted his educational history, to include high school graduation and commercial truck driving school. The Veteran also summarized his employment history. He stated that he left Schneider National due to high blood pressure and phlebitis of the lower extremities. He indicated that his duties at Plantation Lakes involved calling and email individuals about maintenance. The Veteran reported that as of September 2009, his medical condition worsened to the point where he was not able to hold any gainful employment. The Board finds that the impairment from the Veteran's service-connected disabilities of coronary artery disease, erysipelas and cellulitis of the right leg, thrombophlebitis of the left leg with erysipelas and cellulitis, and essential hypertension would cause impairments in physical work, but would not preclude sedentary work or all substantial gainful employment. Supporting this conclusion are the VA examiners' opinions, who considered the Veteran's treatment history, diagnostic results, and subjective history; the October 2016 VA examiner also considered the impact of all of the Veteran's service-connected disabilities. The Board acknowledges the Veteran's contention that he has not been able to hold any gainful employment since September 2009. The Board notes the VA Form 21-4192 from Planation Lakes indicates that the Veteran did not miss any time since September 2008 due to disability and he was terminated because his services were no longer needed. This indicates that the Veteran was able to perform his assigned job duties and was not impaired due to disability, to include any of his service-connected disabilities. However, when considering the Veteran's education, training, and employment history along with the impact of his service-connected disabilities, the Board finds that the evidence weighs against a finding that the Veteran is unable secure or follow substantially gainful employment prior to his 100 percent schedular rating for his service-connected heart disability. Therefore, the criteria for TDIU compensation have not been met. See 38 C.F.R. § 4.16. ORDER Compensation based on TDIU is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs