Citation Nr: 1804042 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-12 190A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based upon individual unemployablity (TDIU) for the period prior to January 14, 2015. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1968 and from January 1969 to January 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The decision granted service connection for diabetic neuropathy of the left and right lower extremities, each rated 10 percent disabling, effective November 17, 2011; decreased the Veteran's rating for diabetic retinopathy with cataracts, from 20 percent to 10 percent, effective January 14, 2013; continued a 60 percent rating for ischemic heart disease; and denied entitlement to individual unemployablity. In June 2013, the Veteran expressed disagreement with the January 2013 rating decision and stated "I disagree with the denial of IU (individual unemployablity) and ask that you send my case to a Decision Review Officer (DRO)... so I may appeal." In response to the Veteran's notice of disagreement (NOD), the Veteran was sent a Statement of the Case (SOC) that considered each issue addressed by the January 2013 rating decision. The Veteran, however, specifically limited his appeal to the issue of entitlement to individual unemployablity in his April 2014 VA Form 9; accordingly, the only issue on appeal before the Board is entitlement to a TDIU. In May 2015, the AOJ granted the Veteran a 100 percent schedular rating for ischemic heart disease (IHD), status post myocardial infarction, effective January 14, 2015. While in Bradley v. Peake, the United States Court of Appeals for Veterans Claims (Court) determined that the Board cannot dismiss a TDIU claim as moot, even if the Veteran is already in receipt of a 100 percent disability rating, if the award of TDIU would make the Veteran eligible for SMC. See id.; see also Buie v. Shinseki, 24, Vet. App. 242, 248-50 (2011). The Board finds, however, that entitlement to a TDIU on and after January 14, 2015 may be dismissed as moot as awarding a TDIU for that period would not make the Veteran eligible for SMC. As will be discussed below, the Veteran's grant of a TDIU is based upon multiple conditions, including the Veteran's IHD, for which the 100 percent schedular rating was granted. As a TDIU based upon several disabilities cannot be used to satisfy the requirement of a single disability rated as totally disabling; and none of the evidence of record indicates that any of the Veteran's conditions (other than his IHD) on their own prevent the Veteran from working, the Board finds that entitlement to a TDIU on and after January 14, 2015 is moot. See Buie, 24, Vet. App. at 249-50 (An award of TDIU based on combined effects for several disabilities cannot be used to satisfy the requirement of a single disability rated as totally disabling). FINDING OF FACT The Veteran's service-connected ischemic heart disease, diabetes mellitus, and diabetic retinopathy with cataracts have precluded the Veteran from substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU were met from August 9, 2011 to January 13, 2015. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). If the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 . The effective date of a claim for increase is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. §3.400 (o)(1). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). An exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). Accordingly, the Board will consider when entitlement to TDIU arose, and whether it occurred within a year prior to the date of claim. The Board finds that the current claim for TDIU was received by VA on August 9, 2011; therefore, entitlement to TDIU may not be granted earlier than that date, unless it is factually ascertainable that entitlement arose within a year prior to the receipt of the claim. See 38 C.F.R. § 3.400 (o)(2). From May 31, 2010 to the present, the Veteran has had a combined rating of at least 70 percent and the Veteran's disability rating for his service-connected ischemic heart disease has been at least 60 percent; accordingly, the Board finds that the schedular criteria for TDIU have been met throughout the appeal period. While the Veteran also met the schedular criteria for TDIU within the year prior to his August 2011 application for TDIU, the Board finds that it is not factually ascertainable that entitlement to a TDIU arose within a year prior to the receipt of the claim. Specifically, the Board finds that the evidence indicates that the Veteran has been unable to work due to his service-connected disabilities since at least May 26, 2010, when service connection was granted for ischemic heart disease. The evidence indicates that the Veteran has not worked since at least 2003 and that he has been considered disabled by the Social Security Administration (SSA) since that time. While SSA's determination of disability is relevant to the Veteran's claim, the Board is not bound by SSA determination that the Veteran is disabled. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). As the SSA determination considers both the Veteran's hypertensive cardiovascular disease, which had not been service-connected since more than a year prior to the Veteran's application for TDIU and the Veteran's age, the weight of this evidence is lessened. See 38 C.F.R. § 4.19 (2017) (providing that age may not be used as basis for a TDIU rating). The Board finds that the collective impact of the Veteran's ischemic heart disease, his diabetes mellitus, and his service-connected left eye disability result in the Veteran from being unable to engage in substantial and gainful activity. In VA examinations in May 2010 and November 2011, the Veteran was reported based upon exercise stress testing (June 2010) and interview based stress testing to have symptoms of dyspnea, fatigue, angina, dizziness, or syncope at activity levels equivalent to 4 metabolic equivalents (METs). The VA examiners indicated that between 3-5 METs was equivalent to the physical exertion of light yard work or brisk walking, which would cause the onset of cardiac symptoms. In addition to the Veteran's limitations due to his ischemic heart disease, the Board notes that the Veteran's ability to work is additionally limited by his service-connected diabetes and the cataracts in his left eye. In the Veteran's VA Form 9, he stated that his heart disease coupled with the diabetes causes him to have episodes where his blood sugar levels are unstable, which results in periodic dizziness and lightheadedness. His left eye was also noted to have 20/100 near vision after correction in October 2007 and 10/200 near vision after correction on examination in December 2016. The evidence indicates that the Veteran worked as an assistant operator at a pulp mill from 1977 to 1993, and a custodian or sanitation worker from 1993 to 2003. The Board finds that the Veteran would be unable to perform these prior positions due to his physical limitations and is at most capable of a sedentary position due to his the fatigue and weakness caused by his service-connected ischemic heart disease. The Board, however, also finds that the Veteran is precluded from a sedentary position due to the combined effects of his ischemic heart disease, his diabetes mellitus, and his left eye condition. The Board finds that the Veteran's impaired corrected vision and the periods of fatigue and lightheadedness caused by his heart disease and diabetes would severely limit the sedentary work available to a Veteran with no past sedentary work experience and a high school education. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has been unable to work due to his service-connected disabilities since May 26, 2010. As this date is prior to one year before the Veteran's claim for entitlement to a TDIU, the Board finds that entitlement to a TDIU is warranted from the date of claim, August 9, 2011. As noted above, the Veteran was granted a 100 percent rating due to his ischemic heart disease from January 14, 2015 in a May 2015 rating decision. The evidence does not indicate that Veteran's other service-connected conditions which are rated less than total (diabetes mellitus, diabetic retinopathy with cataracts, diabetic neuropathy of the left and right lower extremities, and erectile dysfunction) would on their own cause the Veteran to be unable to perform any substantially gainful employment, including with consideration of the Veteran's work experience and level of education as of January 14, 2015. Entitlement to SMC under 38 U.S.C. § 1114 (s) requires that the Veteran be in receipt of a total disability rating with additional service-connected disability ratable at 60 percent, separate and distinct from the total disability rating. As the award of TDIU on and after January 14, 2015 would not make the Veteran eligible for SMC, the issue of entitlement to a TDIU from January 14, 2015 is moot. ORDER From August 9, 2011, to January 13, 2015, entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs