Citation Nr: 18146618 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-21 650A DATE: October 31, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due to the Veteran’s service-connected disability. CONCLUSION OF LAW The requirements for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps on active duty from February 1952 to September 1952. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Services, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, specialized 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; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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). Service connection has been established for one disability-rheumatic fever with secondary rheumatic heart mitral valve disease rated as 30 percent disabling. As the Veteran does not have a single service-connected disability of at least 40 percent or a total combined rating of 70 percent or more, the schedular criteria under 38 C.F.R. § 4.16(a) have not been met for TDIU. The Board previously denied the claim for TDIU and remanded this matter for additional development that included extraschedular consideration to the Director of Compensation Services in February 2018. In June 2018, the Director denied the initial referral for extraschedular consideration, and as a result, this claim has been returned to the Board for review. Although the Board must refer an extraschedular TDIU to the Director in the first instance, the Board reviews entitlement to extraschedular TDIU thereafter on a de novo basis. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board’s prior remand, characterized the Veteran as only having a tenth-grade education, further review of the evidence shows, after tenth grade the Veteran received a Veteran’s Diploma in 1954 and also took a middle management course at Lansing Community College. See November 2010 TDIU Application and December 2010 Lansing Community College Transcript. After service, the Veteran was employed as a manager for the State liquor commission. He stopped working in July of 1984, when he says his service-connected heart condition caused him to become too disabled to work. The Board recognizes that the Social Security Administration (SSA) found the Veteran was disabled in March 1990. The SSA found the Veteran “has severe exhaustion, fatigue, shortness of breath and chest pain upon very minimal physical exertion as a consequence of rheumatic heart disease with mitral insufficiency, chronic bronchitis, chronic obstructive lung disease, hypertension and an old myocardial infarction.” See January 1990 SSA Determination. The SSA’s grant of benefits was based on the effect of non-service-connected disabilities as well as his service-connected heart disease on his ability to work. Dr. N.J. wrote a letter in September 2010 stating that due to the Veteran’s service-connected heart condition, the Veteran is totally and permanently disabled and cannot work forty (40) hours per week. See September 2010 Opinion Letter from Dr. N.J. This opinion is conclusory and without rationale. In November 2010, the Veteran submitted a November 1989 letter from Dr. N.J., who stated due to the Veteran’s fluctuating blood pressure, erratic heart beat and extreme exhaustion, that the Veteran retire. Dr. N.J. further went on to say, “any full-time employment involving lifting and stressful situations, could have a negative impact on his heath.” See November 1989 Opinion Letter from Dr. N.J. Dr. N.J. failed to address the specific disability causing the Veteran’s unemployability and included non-service-connected disabilities in the reasoning. As a result, both letters are afforded less probative weight. In December 2010, the Veteran provided a letter from a would-be employer, who stated because the job involved occasional stressful situations and required the heavy lifting of beer, pop and ice coolers, up a flight of stairs, the employer could not hire the Veteran. See December 2010 Letter from D.W. The Veteran’s heart was examined by VA in April 2011 and the VA examiner noted the he did not have any occupational limits due to his rheumatic heart disease. In March 2014 the Veteran testified in a hearing before the undersigned, that he retired on the advice of his doctor. He testified that carrying cases up and down the stairs are difficult for him, but stairs alone do not cause him difficulty. He testified he does not experience the symptoms of dizziness or fainting. He stated that he is able to snow blow his yard for about half an hour before tiring and that he can walk his dog for approximately four blocks before needing a “breather.” See Page 5 of March 2014 Hearing Transcript. He also stated that he does get frequently tired and that he occasionally gets a dull pain in his chest that feels like a woodpecker pecking away at a tree. Id. at page 8. When examined by VA in January 2015, the VA examiner opined that the Veteran’s service-connected rheumatic heart disease was not likely to impact his ability to obtain and maintain substantially gainful sedentary employment. The VA examiner stated findings were based on review of the Veteran’s claims file, physical examination and history provided by the Veteran. No specific reasoning or rationale was offered, making this opinion less probative. In February 2015, the Veteran submitted a medical note from Dr. B.S. which stated the Veteran has severe mitral valvular insufficiency and that as a result the Veteran has been unable to work. The opinion provides no discussion as to the level of impairment due to the service-connected disability and is insufficient and is afforded less probative weight. In 2016 the Veteran underwent a private employability evaluation. The vocational disability expert opined that “it is clear that by 1984 [the Veteran] was having and continues to have significant service-connected symptoms that would have affected his ability to maintain any type of gainful employment, including sedentary work.” See June 2016 Employability Evaluation. The disability expert reasoned that the Veteran has no transferable skills based on his vocational profile and lack of computer skills. Additionally, the expert noted the Veteran would also be excluded from unskilled sedentary work due to the extensive fatigue caused by his service-connected disability. The vocational disability expert does not possess the medical training to determine whether the symptoms the Veteran experiences are caused by the Veteran’s service-connected heart condition. Nor, does the expert have the ability to determine which symptoms are related to his different diagnoses, to include his non-service-connected disabilities. The vocational disability expert, does however, possess the skills and knowledge to assess the Veteran’s employment skills as they relate to his education. The expert characterized the former position held by the Veteran at the liquor board as sedentary and highly skilled. However, the Veteran has reported this position was quite physical in nature. The expert failed to discuss the Veteran’s college attendance at Lansing Community College for a course in middle management and how this affects his ability to be employed. As the vocational disability expert is not a medical professional, and failed to address the Veteran’s entire educational history, this opinion is afforded less probative weight. The Veteran underwent another examination in May 2017, where the examiner diagnosed the Veteran with significant progressive ischemic heart disease (with secondary PVCs) and COPD. The examiner opined that ischemic heart disease and COPD are the primary sources of the Veteran’s reduced exercise tolerance. Further, the VA examiner determined there was no objective evidence to support a conclusion of decompensated mitral regurgitation. The examiner also opined that disregarding age and other disabilities an individual with only mitral valve disease manifested in this Veteran would be capable of exertion of about 7 METS. The examiner stated that his opinion is supported by current findings and that the Veteran could perform 9-10 METS on two stress tests 32 and 42 years after discharge. The examiner addressed that the Veteran’s 2016 Employability Evaluation failed to consider these points. Ultimately the examiner opined that the Veteran, based only on his service-connected mitral valve disease, would certainly be able to perform sedentary and light physical work. In September 2017, the Veteran was examined by a private board-certified cardiologist. This examiner opined that it is more likely than not that the combined service-connected rheumatic heart mitral valve disease and non-service-connected coronary artery disease are primarily responsible for the Veterans’ physical limitation. The examiner argued that from a medical standpoint it is not possible to reliably sparse out the symptoms of the two disabilities and estimate the percent contribution of the Veteran’s various cardiac conditions to his overall disability. The examiner reasoned that both the Veteran’s cardiac conditions affect the left ventricle and lead to left ventricular dysfunction and eventually heart failure. The examiner went on to say that it is less likely than not that COPD is primarily responsible for the Veteran’s physical limitations. The examiner also opined that the it is more likely than not that the Veteran’s service-connected rheumatic heart disease and mitral insufficiency, complicated and aggravated by subsequent other conditions, especially other cardiac conditions, lead to the development and worsening of heart failure which has at least as likely as not precluded the Veteran’s inability to secure and follow substantially gainful employment. This opinion is highly probative. However, the examiner’s opinion concedes the sentiment that the Veteran’s service-connected disability is not solely responsible for his unemployability, but that, in combination with his non-service-connected disabilities, prevent him from working. The examiner’s opinion, is that it is not possible differentiate which cardiac condition is solely responsible for the Veteran’s unemployability. In February 2018, the Veteran was examined by VA and that VA examiner disagreed with the 2017 private cardiologist. The 2018 VA examiner first addressed the Veteran’s history of stress test results which in 1989 was 9-10 METS, in 1995 was 9-10 METS and in 2010 was 8 METS. “Twenty-six years after retirement [the] Veteran was capable of 8 METS and was clearly not totally disabled due to heart disease.” See February 2018 VA Medical Opinion. The VA examiner noted the private cardiologist’s statement that at least one of the Veteran’s stress tests were stopped due to dyspnea. The 2018 VA examiner reasoned that stress tests are typically run until a rate limiting event such as dyspnea occurs and that at 10 METS on the Bruce Protocol a patient is typically walking 3.4 MPH uphill on a 14 percent grade. The VA examiner noted that dyspnea at this level is not, by itself, indicative of cardiac disability. The VA examiner also noted the private cardiologist’s suggestion that the left atrium was “a significant echocardiogram finding supporting disease progression.” Id. However, the VA examiner noted the Veteran had mild LA dilation which is an early development in mitral regurgitation and absent complications such atrial fibrillation, which the Veteran does not have, mild to moderate dilation of the left atrium is not associate with significant disability. Id. The VA examination also noted the left ventricular hypertrophy and PVCs noted in the Veteran’s medical records are very unlikely to be related to his mitral regurgitation. The VA examiner ultimately opined that the Veteran’s mild to moderate mitral regurgitation is not a cause of significant, much less, total disability. The Board also finds this opinion to be highly probative. Although the September 2017 private opinion from the board-certified cardiologist is highly probative, the examiner opines the Veteran’s service-connected rheumatic heart disease, in some combination with his other non-service-connected disabilities prevent him from being able to follow and secure substantially gainful employment. The private cardiologist does however, opine that it is not possible to determine, what percent the Veteran’s service-connected heart condition relates to his unemployability. The April 2011 and May 2017 VA examinations also contain opinions that the Veteran’s service-connected disability does not cause occupational limitations, nor does it prevent him from securing sedentary work with light physical work. Further, the Veteran himself testified that he does not experience feelings of fainting or dizziness. He further stated that during the winter he removes snow from his own yard with a snow blower and assists his neighbor with the same, for no more than half an hour. The Veteran also testified that while carrying cases up and/or down stairs would be difficult, he does not find the task of stair climbing, in itself, difficult. Lastly the Veteran testified that he walks his dog four blocks, before needing rest. The Board also acknowledges the Veteran’s statements that it takes him two or three days to mow his lawn when it used to take him an hour and that his job with the liquor board was simply too physical for him. The Board has also considered the lay statements of those other than the Veteran. In March 2010, the Veteran’s spouse wrote a statement to VA in which she recounts an incident in 2006, when the Veteran was sweating, complaining of shortness of breath and pressure in his chest. She also reported that over the past year the Veteran had slowed down and seemed regularly exhausted and short of breath. In November 2010, the Veteran’s former manager reported the Veteran’s claims of not being able to work a full shift were not exaggerated. The Board acknowledges these statements and that the person(s) making them are credible and competent to report what was observable, however, neither the Veteran, his spouse or former manager possess the medical training required to associate the reported symptoms specifically to his service-connected heart condition. The Board finds the VA examinations of April 2011, May 2017 and February 2018 highly probative of the impact of the Veteran’s service-connected heart condition on his ability to secure and follow substantially gainful employment. The Board also finds the September 2017 private opinion highly probative, in that the private cardiologist opined the Veteran’s service-connected heart condition in combination with his aggravating non-service-connected heart conditions, contribute to his unemployability. Thus, these three VA opinions outweigh the private opinion reflecting the Veteran’s inability to secure and follow substantially gainful employment. Further, the Board finds the Veteran’s characterization of his own level of physical exertion to be quite probative. The Veteran testified that he can walk four blocks before exhaustion, remove snow during the winter (for thirty minutes) and walk up and down stairs without difficulty. The Veteran also testified he does experience fainting or dizziness. The Board finds, given the Veteran’s educational (college managerial course) and employment history, he is not precluded from sedentary employment with light physical work. Based upon all of the foregoing evidence, the Board concludes that the Veteran’s service-connected rheumatic heart disease did not prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience. While the Veteran’s service-connected heart condition had a functional impact upon employment, it still allows the Veteran to secure and follow substantially gainful employment in a sedentary work environment with light physical work. There is no evidence that his rheumatic heart disease limited his work to the degree required for a TDIU. The Board finds that the preponderance of the evidence is against a finding that the service-connected rheumatic heart disease precluded all forms of substantially gainful employment, considering his work training and history. Accordingly, the Veteran’s claim for TDIU on an extraschedular is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel