Citation Nr: 18153428 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-35 241 DATE: November 28, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to an increased rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran’s service connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1950 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran’s claims for TDIU and for an increased rating for his chronic obstructive pulmonary disease (COPD). In November 2014, the RO received the Veteran’s Notice of Disagreement (NOD) in response to the August 2014 rating decision. In September 2015, the RO issued a Statement of the Case (SOC) denying the Veteran’s entitlement to TDIU. As a preliminary matter, the Board notes that the Veteran’s claim for entitlement to an increased rating for his COPD was not addressed in the RO’s September 2015 SOC. In June 2018, the Veteran testified before the undersigned Veterans Law Judge. During the hearing, the undersigned determined that the Veteran’s November 2014 NOD included a claim for entitlement to an increased rating for his COPD disability. A transcript of that hearing is associated with the claims file. Entitlement to a TDIU is granted. The Veteran seeks entitlement to a TDIU contending that his service connected ischemic heart disease (IHD) and COPD prevent him from obtaining or maintaining substantial gainful employment. TDIU may be assigned 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. If there is only one service connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled 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) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). Substantially gainful employment also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342, 356 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Here, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a). The Veteran is in receipt of service-connected benefits including 60 percent for his IHD disability, 30 percent for his COPD disability, and 0 percent for his lobectomy scar. His combined disability rating is 70 percent. Therefore, the remaining inquiry is whether such disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The record reflects that the Veteran studied business administration in college for two years prior to joining the Army. See DD-214 Form. The Veteran stated that in the past he has worked for a loan company, for a janitorial service contractor, and for a drink distribution company. See June 2018 Board Hearing transcript, p. 18. The Veteran also explained that post-service, he traveled with the Texas State Highway Department and was a work supervisor for patients at the Texas State Hospital, before working as a Veterans Service Officer for 10 years. See June 2018 Board Hearing transcript, p. 18-19. He reported, and the evidence shows, that he last worked in October 2013 as a security guard supervisor. The Veteran stated that his employer recommended he leave his security guard position because of his disability. See June 2018 Board Hearing transcript, p. 15. Indeed, the Veteran testified at the June 2018 Board Hearing that he stopped working because of his disability. The Veteran reported that since 2011 his primary care doctor, Dr. Argun, had advised him to stop working. See June 2018 Board Hearing transcript, p. 14. His statement is confirmed by an August 2013 Disability Benefits Questionnaire (DBQ), where Dr. Argun averred that the Veteran’s COPD made it impossible for him to perform his security guard job. A September 2013 VA treatment note also reports that the Veteran feels he cannot carry out his work duties. Additionally, in a September 2013 cardiology follow up, the examiner noted that the Veteran was unable to pass a physical examination to perform his duties as a guard because he was unable to climb stairs and run or walk at the pace that was required for the job. Further medical evidence of record suggests that the Veteran’s COPD and IHD impairs his ability to function in the workplace. In an October 2013 DBQ and a July 2014 VA examination, two physicians found that the Veteran’s IHD limited his ability to work. Specifically, the July 2014 VA examiner noted that the Veteran was unable to climb stairs and demonstrated a decreased ability for prolonged standing. In a July 2014 VA examination, the physician also noted that the Veteran’s COPD limits his ability to work because his respiratory condition leaves him very fatigued. The VA physician further explained that the Veteran’s COPD impacted his ability to work because the Veteran could not engage in prolonged standing, rapid walking, stair climbing, or running. Moreover, during a November 2015 pulmonary examination, the Veteran stated that he tired easily. In a February 2016 VA treatment, the examiner explained that the Veteran’s service connected COPD impacted his ability to work, in part, because of the Veteran’s symptom of shortness of breath. Likewise, during that treatment, the Veteran reported difficulty in climbing stairs, rapid walking, and prolonged standing. Finally, in an August 2018 VA examination, a VA physician found that the Veteran’s COPD impacted his ability to work. The physician noted that the Veteran experienced fatigue, shortness of breath, chest pressure, and dizziness. The physician stated that the Veteran’s COPD decreased his productivity and efficiency, resulting in the Veteran experiencing easy fatigue with low endurance during all physical activity and having to frequently take recovery breaks. The Board notes the medical documentation has provided significant credibility to the Veteran’s claim that his service-connected disabilities of COPD and IHD are a major barrier to his ability to be employed. The medical evidence of record indicates that his physical health, particularly his easy fatigue and frequent recovery breaks for all activity, prevent him from performing the requirements of employment at any physical work level or for any other light employment. Significantly, his primary care doctor found that his COPD made working security impossible and VA examinations stated that his COPD and IHD impacted his ability to work. Thus, in weighing the lay and medical evidence of record, as well as the Veteran’s educational background and prior work experience, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in another profession or field. Based on the foregoing, the Board finds that TDIU is warranted as the Veteran’s service-connected disabilities preclude him from participating in any substantially gainful employment consistent with his education and work experience. Accordingly, entitlement to a TDIU is granted. REASONS FOR REMAND Increased rating for chronic obstructive pulmonary disease is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran submitted an NOD in November 2014 as to the increased rating claim for his service-connected COPD. To date, the RO has not yet issued an SOC with respect to this claim, which is the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of an SOC. The Board emphasizes that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed if the Veteran wishes to continue his appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to this matter. The matter is REMANDED for the following action: Furnish to the Veteran an SOC with respect to the matter of entitlement to an increased rating for his COPD, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal to perfect an appeal of this issue. The Veteran is reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected—for this claim, within 60 days of the issuance of the SOC. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Law Clerk