Citation Nr: 1805346 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-10 853 ) 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) prior to March 7, 2016. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2015 the Board remanded this claim for further development. In July 2016 the RO granted a TDIU from March 7, 2016. This did not fully satisfy the Veteran's appeal because, when he submitted his claim, the Veteran reported that he became unable to work in March 2011. Thus, the claim remains on appeal. The issues of entitlement to increased ratings for service-connected PTSD and coronary artery disease have been raised by the record in a February 2017 informal hearing presentation submitted by the Veteran's representative, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran has been rendered unable to secure substantially gainful employment as a result of his service-connected disabilities from May 4, 2011. CONCLUSION OF LAW The criteria for an award of TDIU have been met from May 4, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Any error in notice or assistance is harmless given the favorable determination in this case. Legal Criteria A veteran is entitled to TDIU benefits when, due to service-connected disabilities, they are unable to secure or follow a substantially gainful occupation, and have a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16; Van Hoose v. Brown, 4 Vet. App. 361 (1993). TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361. Facts and Analysis In this case, the Veteran is service-connected for coronary artery disease, rated at 60 percent disabling, effective May 4, 2011. The Veteran was granted service connection for posttraumatic stress disorder (PTSD), rated at 30 percent disabling, effective May 4, 2011. The Veteran has a combined rating of 70 percent. 38 U.S.C. § 4 .25. Therefore, the Veteran meets the minimum schedular criteria and his TDIU claim may be adjudicated on a schedular basis from that date. See 38 C.F.R. §§ 4.16(a), 4.25; Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran stated in his December 2011 claim for a TDIU that he became too disabled to work in March 2011. The Veteran was afforded a VA examination in March 2011 for his coronary artery disease. The examiner recorded a metabolic equivalent test (METS) of four. The Veteran reported shortness of breath with minimal exertion. The Veteran was afforded another VA examination in November 2011 for his coronary artery disease. The examiner stated the Veteran had a METS of essentially five. The Veteran was also afforded a VA examination for his PTSD in November 2011. The Veteran reported he used to listen to music but no longer enjoys doing so. He also stopped writing songs several years prior. He reported no longer enjoying attending music conventions or participating in a choir. He stated "what it used to do for me it doesn't anymore." He also reported his ability to work is restricted by his medical conditions and treatment demands. The Veteran was afforded a VA examination in September 2012 with regard to whether his coronary artery disease impacted his ability to work. In September 2015 the Board found this examination to be inadequate because a stress test for METS was never obtained. Furthermore, a VA examination regarding the impact of his PTSD on his ability to work was never obtained. The Veteran was afforded new VA examinations in March 2016 which provided opinions that his PTSD and coronary artery disease did impact his ability to work. The RO subsequently granted the Veteran's claim for a TDIU from March 7, 2016, the date of the new VA examinations. In an October 2016 statement, the Veteran's representative stated the Veteran was awarded a TDIU effective March 7, 2016 based on the same level of disabilities that became effective on May 4, 2011. A claim for a TDIU rating is part and parcel of a claim seeking increased ratings. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Veteran's current disability ratings became effective May 4, 2011. The Veteran has stated that he became unable to work due to his service-connected disabilities in March 2011. The Veteran did not receive an adequate VA examination regarding the impact of his service-connected disabilities on his ability to work until March 2016. Therefore, because there is no competent or credible evidence weighing against the Veteran's claim, the Board finds that the evidence supports a grant of TDIU on a schedular basis from May 4, 2011, the date his current disability ratings became effective. See Swain v. McDonald, 27 Vet. App. 219 (2015) (holding that the effective date for an increased rating for is based on when it is factually ascertainable that the disability worsened and not on the date of the examination that documented the worsening). The Board has considered whether the Veteran's TDIU should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b), for the period prior to May 4, 2011. See Thun, 22 Vet. App. at 115. Prior to May 2011, the Veteran was only service-connected for coronary artery disease at 30 percent disabling (from August 2010); thus, he is not eligible for TDIU on a schedular basis during this period. The March 2011 VA examination report noted the Veteran could lift 20 pounds but not 50, walk up one flight of stairs, wash his car but needs to rest afterwards, and experiences shortness of breath. The examiner stated that the Veteran's coronary artery disease is nonobstructive and less likely than not causing symptoms that are activity limiting. The examiner reviewed the claim file and thoroughly discussed the Veteran's medical history and symptoms. The March 2016 VA examination report regarding the veteran's PTSD stated his cognitive impairment would render him unemployable. However, the examiner also stated it was difficult to separate the various contributions to his lack of ability to concentrate, which included his other medical conditions. Therefore, it was the combined effects of his PTSD and coronary artery disease which rendered him unemployable. Unfortunately, the Veteran was not service-connected for PTSD prior to May 4, 2011. In determining whether a Veteran is entitled to a TDIU rating, neither the veteran's non-service-connected disabilities, nor age, may be considered. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Board finds that the medical evidence of record does not support a finding that the Veteran's service-connected coronary artery disease rendered him unable to secure or follow a substantially gainful occupation prior to May 4, 2011. Thus, referral for extraschedular TDIU consideration for the period prior to May 4, 2011 is not warranted. ORDER TDIU is granted from May 4, 2011, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs