Citation Nr: 1803214 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual employability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to a TDIU. FINDING OF FACT The Veteran is not rendered unemployable as the result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[A]bsent extraordinary circumstances . . . it is appropriate for the Board and the [United States Court of Appeals for Veterans Claims] to address only those procedural arguments specifically raised by the veteran . . . ." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's VA, Social Security Administration (SSA), and identified private treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. Concomitant with his Application for Increased Compensation based on Unemployability filed in September 2011, the Veteran was afforded VA examinations in June 2011 and March 2013 for his service-connected disabilities. The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue have been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2017). II. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran contends that he is unemployable as a result of his heart condition. As stated above, he filed an application for TDIU in September 2011. See September 2011 Form VA 21-8940. On the application, the Veteran stated that he was last employed in December 2009 and has been too disabled to work since then. Further, he avers that he worked as a construction electrician for 40 years prior. However, he argues that he had a heart attack in early January 2010 and as a result received a "four vessel bypass grafting." Id. Thus, he reasoned that his heart condition makes it so he can no longer "do the physical work it takes to hold a job at [his] trade. [He also has] shortness of breath and a blood clot in [his] right leg that causes it to swell." Id. Shortly after, his employer responded to a Request for Employment Information in Connection with Claim for Disability Benefits. See August 2011 Form VA 21-4192. His employer verified his employment from September 2009 to January 2010. The Veteran was "unable to return to work" January 4, 2010 and was last paid on December 28, 2009. Id. The Veteran has met the threshold requirement for entitlement to a TDIU on a schedular basis. Since April 2, 2012, the Veteran has been service-connected and rated for the following disabilities: ischemic heart disease (IHD), rated at 60 percent disabling from August 31, 2010; and diabetes mellitus type II (DM) rated at 20 percent disabling from April 2, 2012. Prior to April 2, 2012, the Veteran's single disability was rated at 60 percent or more; since then, the Veteran's combined disabilities are rated at 70 percent. See 38 C.F.R. § 4.16(a) (2017). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran's claim stems from a quadruple coronary artery bypass graft performed after a January 2010 catheterization revealed left ventricular ejection fraction (LVEF) of 35 percent and five days of recurrent chest pain. See January 2010 discharge summary. At discharge, his medical professional stated that the Veteran was to "maintain a cardiac diet at home, and is to increase his activity as tolerated while avoiding any strenuous activity for the next 2-3 months." See January 2010 discharge summary. A month later, a physician stated that since discharge, the Veteran had been doing generally well. Cardiac examination revealed regular rhythm and rate. See February 2010 Dr. J.L.H. private treatment record. Importantly, Dr. J.L.H. stated that the Veteran's chest x-ray was clear and that the Veteran "may resume driving and increase activity level as tolerated." Id. Currently, the Veteran receives Social Security Disability Insurance (SSDI) benefits for coronary heart disease. See July 2010 SSA determination. In July 2010, pursuant to a Physical Residual Functional Capacity Assessment (FCA), the Veteran was found to occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk a total of 6 hours in an 8-hour workday, and sit 6 hours in an 8-hour workday. See July 2010 FCA. Further, the Veteran could push/pull without limitation, climb ramp/stairs, balance, stoop, kneel, crouch, crawl, and had no manipulative limitations. Id. However, the Veteran could not use a ladder, rope, or scaffolds. Importantly, the Veteran was to "avoid dangerous machinery and unprotected heights." Id. Three months before the Veteran applied for a TDIU, he was evaluated to determine the severity of his service-connected IHD. See June 2011 VA examination. At the examination, a diagnostic exercise test was not performed because it was not required as part of the Veteran's treatment plan. See June 2011 VA examination. As a result, the examiner completed the Veteran's Metabolic Equivalent (METs) based on the Veteran's responses. The lowest level of activity at which the Veteran reported fatigue was 3-5 METS; that level has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4mph). Id. The Veteran did have a nuclear stress test on file and his LVEF was 64 percent in April 2011. Id. As a result, the VA examiner determined that the Veteran's IHD "does not impact his ability to work." Id. Nevertheless, the Veteran had a deep vein thrombosis of the right thigh after his coronary artery bypass surgery. The Veteran also received VA treatment for his IHD. Six months before he applied for TDIU, the Veteran sought treatment for chest pain. See March 2011 VA treatment record. At that time, the Veteran reported that he could work in the yard and exert himself; he also experienced pain in bed or at rest. Id. Further, the Veteran described his chest pain as dull that could occur at rest or with activity and lasted 20-30 minutes. At that time, the Veteran was encouraged to exercise 30 minutes a day, five times a week. Id. He was found to have mild mitral insufficiency and mild to moderate aortic valve insufficiency. Six months later, the Veteran saw the cardiologist at VA again. This time, a nuclear study was preformed that showed a scar in the left anterior descending coronary artery, involving approximately 15 percent of the myocardium with a rest ejection fraction of 64 percent. See September 2011 VA treatment record. At that time, the Veteran said he "did not think [about his chest pain] and it does not limit his activities at all." Id. Specifically, the Veteran walks a quarter to half a mile every morning for exercise with no congestive heart failure symptoms. Id. The Veteran followed up with his cardiologist in April 2012. There, he revealed no congestive heart failure symptoms and stated that he walked 45 minutes to an hour daily for exercise. See April 2012 VA treatment record. Importantly, the medical professional revealed that the Veteran was exercising seven days a week "without difficulty" and was "encouraged to continue exercising." Id. Six months later, the Veteran continued to walk for exercise daily and did not report congestive heart failure symptoms. See October 2010 VA treatment record. At that visit, the medical professional determined the Veteran's heart was stable and exhibited no symptoms. Id. Further, the medical professional asked the Veteran to continue with his diet and exercise. Id. In March 2013, the Veteran was afforded a VA examination to determine the severity of his service-connected DM. When asked if the Veteran's DM impacts his ability to work, the examiner responded "no." See March 2013 VA examination. The examiner also stated that the Veteran's DM was managed by a restricted diet and oral hypoglycemic agent. The Veteran did not require insulin or regulation of activities as part of his medical management of DM. Id. The Veteran has some college education and has worked as an electrician for 40 years before retiring in late 2009. The Board finds that the preponderance of the evidence of record demonstrates that the Veteran's service-connected disabilities are not sufficiently severe to preclude him from obtaining or maintaining substantially gainful employment. The Veteran recovered from his quadruple heart bypass surgery and was cleared for regular activity shortly thereafter. He exercises daily and can at least do light yard work (weeding), mow the lawn (power mower), and walk briskly (4 mph). Though he may have to rest, the evidentiary record shows that he can stand and sit for at least 6 hours out of an 8-hour workday. Hence, the evidentiary record shows that given the Veteran's extensive work experience and education, he can obtain and retain substantially gainful sedentary employment. As such, though the Veteran and the medical examiners provided ample facts to make a decision, the responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, the Board finds in this case that, while there is evidence of interference with employment, a preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The assigned disability ratings of 20 percent for DM and 60 percent for IHD are themselves recognition that industrial capabilities are impaired. The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the claim for a TDIU. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs