Citation Nr: 20003335 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 11-32 114 DATE: January 14, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his work history, education, and physical impairments caused by his service-connected disabilities have rendered him unable to secure or maintain substantially gainful employment since November 1, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met since November 1, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Board found that the issue of entitlement to a TDIU had been raised by the record in the increased rating claim for a heart condition, to include coronary artery disease (CAD) and arteriosclerotic heart disease (IHD). Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board remanded both issues for further evidentiary development. In June 2018, the Board increased the disability rating for the heart condition from 10 percent to 30 percent and remanded the TDIU claim for additional evidentiary development. A November 2018 rating decision implemented the Board’s increased rating grant for the heart condition claim. In correspondence received December 17, 2018, the Veteran submitted a signed Appeals Satisfaction Notice, stating that he is satisfied with the decision rendered and wishes to withdraw all remaining issue(s) contained in his recent Supplemental Statement of the Case (SSOC). While the Veteran had not received a recent SSOC, he did receive the November 2018 rating decision that implemented the Board’s grant for the heart condition issue but did not address the TDIU issue. See November 14, 2018 Notification letter. Additionally, in correspondence submitted with the Appeals Satisfaction Notice, the Veteran stated, “in reference to the VA letter dated November 14, 2018.” Furthermore, at the same time he submitted the Appeals Satisfaction Notice, the Veteran submitted VA Form 21-22, appointing a representative, which indicates a belief that he still had a claim pending. As it is ambiguous whether the Veteran wished to withdraw his appeal for entitlement to a TDIU, the Board will resolve all doubt in the Veteran’s favor and continue the adjudication of the Veteran’s appeal. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”). Entitlement to a TDIU. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. As stated above, in July 2016, the Board found that the issue of entitlement to a TDIU was implicitly raised by the Veteran’s increased rating for CAD claim, under Rice. By way of background, the Veteran filed a claim for service connection for CAD in October 2008, which was granted in a May 2009 rating decision, with a 100 percent rating from October 22, 2008 and a 10 percent rating from February 1, 2009. The Veteran filed a claim for an increased rating for CAD in February 2010. In August 2010, the RO confirmed and continued the 10 percent rating. The Veteran perfected an appeal therefrom. In relevant part, as previously noted, by Board decision issued in June 2018, the 10 percent rating for CAD was increased to 30 percent. The Board also remanded the TDIU matter for additional development. In a November 2018 rating decision, the RO effectuated the Board’s grant to 30 percent, effective February 1, 2009. The TDIU matter remains on appeal. As the issue of entitlement to a TDIU is “part and parcel of the initial rating for that disability,” the effective date of a TDIU may be as early as the effective date applicable to that claim. See Rice, 22 Vet. App. At 454. Accordingly, in this case, the effective date of a TDIU could be as early as October 22, 2008. Service-connected disability compensation is in effect for CAD at 100 percent disabling from October 22, 2008 to January 31, 2009 and 30 percent disabling, effective February 1, 2009; posttraumatic stress disorder (PTSD) at 30 percent disabling from May 30, 2012; diabetes mellitus type 2 at 20 percent disabling from August 18, 2004; peripheral neuropathy of the right and left upper extremities and right and left lower extremities, secondary to diabetes mellitus, at 10 percent disabling each since September 23, 2010; tinnitus at 10 percent disabling from February 27, 2013; and bilateral hearing loss at noncompensable evaluation. The combined rating for these disabilities was 100 percent from October 22, 2008, 40 percent from February 1, 2009, 70 percent from September 23, 2010, and 80 percent as of May 30, 2012. The initial threshold requirements for entitlement to a TDIU are met from September 23, 2010, as his combined disability rating is 70 percent and he has one disability rated at 40 percent or more when diabetes mellitus and the related peripheral neuropathy and CAD are considered as one disability due to common etiology. Therefore, the question for consideration is whether the Veteran is capable of performing the physical and mental acts required by employment and, if not, when he became unable to. The Board finds that the Veteran has been unable to maintain substantially gainful employment as a result of his service-connected disabilities since November 1, 2010. In an April 2009 VA examination, the examiner noted that the Veteran’s diabetes has been poorly controlled, but the Veteran reported being employed full-time and not missing any time from work during the last 12 months. During an April 2009 VA examination for CAD, the examiner noted that the Veteran is fatigued daily. In a February 2010 Correspondence, the Veteran reported loss of strength, shortness of breath, loss of energy, dizziness and pain down his left arm as a result of his CAD. During a July 2010 VA examination, the Veteran reported increased fatigue that has worsened since his job requires significant physical labor, including taking tires off of large vehicles. The examiner also noted that the Veteran’s CAD medications do cause fatigue. A September 2010 private treatment record notes that the Veteran reported having a “somewhat stressful job” and that his anxiety makes it hard to sleep. A July 2011 VA examiner found that the Veteran’s CAD impacts his ability to work, in that he can only work part-time. In his October 2011 Substantive Appeal, the Veteran reported that he still experiences adverse effects on breathing and chest pain. During a May 2012 VA examination, the Veteran reported that until he retired, he had fatigue and shortness of breath with heavy lifting (lifting truck tires, etc.) at work. The examiner noted that the Veteran’s previous job required lifting heavy objects greater than 100 pounds. She concluded that heavy physical exertion is precluded by the Veteran’s cardiac condition, but mild-moderate physical exertion or sedentary employment is not precluded. Hearing testimony from the Veteran’s DRO hearing in May 2012 shows that he reported getting fatigued and having to rest when doing things he used to be able to, such as mowing the grass. He also reported experiencing pain going down his arms. A March 2013 VA examiner, while noting the Veteran’s PTSD and anxiety, found that from a mental health standpoint, the Veteran functioned well at his job for over 30 years and that his PTSD did not significantly impact employment and would not prohibit obtaining and maintaining gainful employment. The examiner also noted that the Veteran chose to take an early retirement due to struggles with physical health symptoms. An April 2013 VA examiner checked that the Veteran’s CAD, diabetes mellitus, and diabetic peripheral neuropathy did not impact his ability to work, without providing an explanation. In July 2013, the Veteran reported experiencing pain due to his diabetes mellitus, heart, neuropathy, lifting certain things, standing in one spot for a certain amount of time, and sometimes just when he’s sitting. He reported that the pain moves from his neck and arms, down to his hips, legs and feet, causing numbness in his feet and toes. See Social Security Administration (SSA) records. A February 2015 VA treatment record notes that the Veteran has mild depression and insomnia. The Veteran reported that he now considers his PTSD moderate and use to think it was mild. An August 2015 VA treatment record also notes that the Veteran has anxiety. A November 2015 VA treatment record notes that the Veteran complained of mild, occasional chest pain and some mild angina. A March 2018 VA examiner noted that the Veteran’s heart condition is stable and asymptomatic, but that he has shortness of breath. The examiner also noted that while the Veteran’s METS levels allow unrestricted activity in regards to his heart, it is certainly reasonable that “throwin[g] tires” would be too vigorous and could lead to chest pain. The examiner concluded that the Veteran’s heart condition impacts his ability to work as lifting heavy tires, as required by his previous employment, use to give him chest pains. The evidence of record shows that the highest level of education the Veteran has is 8th grade, which he completed in 1966. The Veteran’s SSA records indicate that he had some additional training, to include a certificate in small engine repair, an autobody class, and a 4-year apprentice certification for automotive work in 1987. The Veteran’s occupational history includes being a truck driver from approximately 1969 to 1987. The Veteran worked full time as an auto mechanic from approximately 1974 until October 2010, when he took an early retirement due to physical limitations caused by his service-connected disabilities. The Veteran reported that his job as a mechanic required removing and replacing tires, picking up and carrying oil drums 35 to 40 feet, lifting at most 100 pounds, and frequently lifting 25 pounds. He also reported that his job required constant walking, standing, stooping, kneeling, crouching, crawling, handling large objects, and reaching. See SSA records. The Veteran reported that he has not worked full-time since November 1, 2010. He has also indicated that since 2002, he has worked part-time. In May 2012, the Veteran reported working six hours per week as a janitor, making 400 dollars monthly, and 4,800 dollars in the past 12 months. In November 2019, the Veteran reported working 3 hours per day cleaning bathrooms for 10 dollars an hour, making about 620 to 650 dollars monthly, and 6,000 dollars in the past 12 months. VA treatment records from November 2016 and February 2017 also indicate that the Veteran was mowing three or four lawns for a period of time. However, the Board does not find that this work constitutes substantially gainful employment, as the Veteran’s reported earned income is well below the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Overall, the Veteran’s work history was constantly and significantly physically demanding, which he can no longer perform given his CAD, to include the fatigue caused by the medications he requires, and his diabetic peripheral neuropathy. Additionally, the Veteran’s work history, training, and education did not provide him with the necessary skills to transfer to a sedentary position. Accordingly, given the Veteran’s education, work history, and the physical limitations resulting from his service-connected disabilities, TDIU will be granted, effective November 1, 2010. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.