Citation Nr: 18142818 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 12-00 800 DATE: October 17, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, limited education, and limited and remote work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1965 to September 1967. In October 2012, the Veteran testified at a hearing before Cheryl L. Mason, one of the undersigned Veterans Law Judges. A transcript of the hearing is associated with the record. In March 2018 and April 2018 letters, the Board informed the Veteran that the Veterans Law Judge who conducted the October 2012 Board hearing has since been appointed as the Board’s Chairman and that the law prohibits the Chairman from participating in a proceeding as an individual, but that the Chairman may participate in a proceeding assigned to a panel of judges. The Board further informed the Veteran that he had the option of having an additional hearing or hearings before the additional two Veterans Law Judges assigned to the panel to decide his appeal. The Veteran was asked to respond within 30 days of the letters to indicate whether he wanted an additional hearing or hearings, otherwise the Board would assume he does not want any such additional hearings. More than 30 days have elapsed since issuance of the April 2018 letter, and the Veteran, to date, has not indicated that he desires to have an additional hearing before either or both of the other Veterans Law Judges assigned to the panel in this case. Therefore, the Board will proceed with consideration of the case without scheduling further hearings. In this decision, the Board grants entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and, thus, became permanently and totally disabled due to service-connected disabilities. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Entitlement to a TDIU A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service-connected for an anxiety disorder/depressive disorder, which has been rated as 70 percent disabling since November 14, 2007; and for ischemic heart disease, which was rated as 10 percent disabling prior to January 26, 2010, and as 60 percent disabling since that date. His combined rating for compensation was 70 percent from November 14, 2007, through January 25, 2010, and 90 percent from January 26, 2010. As such, the Veteran has met the schedular percentage requirements for a TDIU at all times during the relevant period because he has had one disability rated at least 40 percent disabling with sufficient additional service-connected disability to bring the combined rating to 70 percent or higher throughout that period. In November 2010, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicating that he has an eighth grade education with no additional training, that he last worked in March 1983 as a coal miner, and that he believes his service-connected anxiety and depressive disorder prevents him from securing or following any substantially gainful occupation. Upon review of the record the Board concludes that the Veteran has a very narrow vocational profile due to his service-connected disabilities, limited education, and limited and remote work history such that he is unable to secure or follow a substantially gainful occupation due to those factors. Specifically, a July 2014 VA examiner estimated the Veteran’s workload to be between 1 and 3 METs, and in September 2014 opined that the Veteran, based solely on his service-connected cardiac condition, would essentially be limited to sedentary work. The evidence further shows that, from a psychiatric standpoint, the Veteran has depression and anxiety symptoms that limit his ability to work with and be around others; his ability to maintain concentration, persistence, and pace; and his ability to remember instructions. The Veteran also has a limited and remote work history, having last worked a physically demanding job over thirty years ago. He also has a limited education. In summary, the Veteran’s service-connected ischemic heart disease and psychiatric disability would limit him to sedentary work that requires only infrequent interaction with coworkers, supervisors, and the public; that accommodates his difficulties with memory and with maintaining concentration and pace; and that is suitable for one with less than a high school education and a remote work history in an unrelated field. Such a narrow range of employability is not generally accommodated within the competitive workforce. As such, in view of his service-connected disabilities, education, and work history, the Veteran would require a sheltered environment to accommodate his substantial limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). Accordingly, the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities and limited work experience and education. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board again notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel