Citation Nr: 20004589 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-16 295 DATE: January 21, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The case has an extensive procedural history and was most recently remanded by the Board in November 2017. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age and any impairment caused by conditions that are not service connected must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for coronary artery disease status post stent placement rated 10 percent from October 1, 2008, 30 percent from June 24, 2010, and 60 percent from April 6, 2019; penile fissures rated at 40 percent from October 21, 2008, 30 percent from March 24, 2014, and 40 percent from February 19, 2016; penile adhesion rated at 20 percent from November 22, 1996 and 30 percent from October 21, 2008; major depression associated with penile adhesion rated at 30 percent from November 20, 2009; bilateral hearing loss rated at 10 percent from June 24, 2010; tinnitus rated at 10 percent from June 24, 2010; scars on penis, residuals of distal penectomy associated with penile adhesion rated at 10 percent from March 24, 2014 to February 19, 2016; and scars, left leg skin graft associated with coronary artery disease status post stent placement rated at noncompensable from March 24, 2014. As the Veteran is service-connected for coronary artery disease status post stent placement at the 60 percent level since April 6, 2019, he meets the schedular requirements for consideration for TDIU. Further, the Veteran has been service connected with a 40 percent disability rating from October 21, 2008 for penile fissures. The Veteran was granted entitlement to service connection for major depression associated with penile adhesion at 30 percent from November 20, 2009. The Veteran’s combined evaluation for compensation has been at 70 percent since November 20, 2009. Accordingly, the Veteran met the schedular requirements for TDIU since November 20, 2009. See 38 C.F.R. § 4.16(a). That being said, the Board must still evaluate whether the service-connected disabilities precluded him from securing and following substantially gainful employment during the appeal period, which extends back to the date of the Veteran’s claim seeking TDIU in March 2011. In October 2008 correspondence from the Veteran regarding his penile condition, he stated that his extremely painful condition causes work problems. He stated that it continues to get more difficult to work. In a March 2010 VA mental disorders examination, the examiner noted that the Veteran had penile surgery in December 2009 with significant relief from pain-related symptoms; however, he still experienced social and marital difficulties and male identity issues following the distal removal. The examiner noted the Veteran’s decrease in work efficiency as due to difficulties with demoralization and stress or worry likely impact his general functioning occasionally in a social and occupational setting. An August 2010 VA heart conditions examination listed the Veteran as unemployed from his usual occupation as a skidder operator due to retirement in 2009 but noted that the Veteran’s coronary artery disease did not affect his usual occupation and resulting work problems. In a May 2011 lay statement, the Veteran contended that he was ordered by his doctor not to split or chop wood, do heavy shoveling, or do any activity which would cause undue stress on his chest muscles. He further stated that because of these restrictions, he is unable to perform the jobs he has done in the past. He noted that he has no computer or office skills and relied on strength to perform the jobs he has had. He explained that he worked in the woods for over 15 years and did all kinds of very physical work which he can no longer do. A May 2011 letter from an employer stated that the Veteran applied for work with the company, however he felt he was unable to hire the Veteran due to his heart complication and the demands of the strenuous job. He further explained that the job requires a lot of upper body strength and arms over the head. In a July 2011 VA general medical examination report, the examiner noted that the Veteran noticed that he became tired easily after working in the yard and needed to sit down and rest for 15 to 20 minutes to recover. The examiner listed the Veteran’s usual occupation as logger/heavy equipment with a date of retirement as 2002 but noted that he continued to work as a farm laborer until 2009. Weakness or fatigue are noted effects on the Veteran’s occupational activities, and the examiner further stated that ordinary, moderate physical activity results in cardiac symptoms such as dyspnea and fatigue. The examiner reviewed service treatment records and VA records, but not private treatment records, to provide an opinion as to whether the Veteran’s coronary artery disease status post stent placement render him unemployable. The examiner gave a negative opinion and noted that the Veteran is a very healthy male with no functional impairments or disabilities except for erectile dysfunction which does not prevent him from working. The examiner rationalized that the only complaint was feeling tired easily after working in the yard, and that he has good range of motion of all extremities and no back issues. In his September 2011 Notice of Disagreement, the Veteran stated that his ability to maintain a job in the present work force is greatly limited, even a sedentary job, because he gets tired easily and does not feel emotionally stable enough to maintain a regular schedule. In his July 2013 Board hearing, the Veteran stated that last time he worked was in 2009 as a laborer. He stated that he tried to get a job somewhere else but with his heart condition they did not want to hire him. He explained that he does not have any other education that would allow him to be hired for sedentary work behind a desk. The Veteran’s wife also testified at the hearing. She said that he cannot hear, he is tired a lot, and his physical stamina has changed. She further stated that he is not computer literate at all, has a hard time hearing on the phone, and does not have skills for a sedentary job. She explained that any additional schooling would be difficult for him, and school was difficult when he was in high school. In an August 2013 VA nursing note with a depression screen, the Veteran noted that his problems make it very difficult to do his work, take care of things at home, or get along with other people. In a March 2014 VA mental disorders examination, the Veteran stated that he works on vehicles doing mechanical work and used to square dance but stopped because he and his wife had leg injuries. Notably, the examiner went on to state that the Veteran’s concentration, persistence and pace can be expected to be mildly impaired in a work setting due to his depression but does not exhibit significant social impairment. The physician opined that from a psychological standpoint, the Veteran remains capable of substantially gainful employment and does not exhibit significant social impairment. The Court found this examination to be inconsistent and contradictory on its face. In an April 2014 opinion on unemployability, the examiner noted that the Veteran is fully capable of working and does not have significant physical conditions that limit his ability to do work, both sedentary or physical work. The examiner noted that the Veteran manages 6 acres of land, cuts firewood, mows grass and wheat, and performs snow removal. He also does all the maintenance at his house and land as needed. In a January 2015 lay statement, the Veteran indicated that he could not work, and had additional health problems that also impacted his ability to hold a job. In August 2017 a Vocational Rehabilitation Consultant (consultant) completed a TDIU Vocational Assessment report by VA claims file review and telephone interview. The consultant noted that the Veteran’s wife needed to repeat questions due to his hearing difficulties. The Veteran stated that when he alternates between sitting and standing, he experiences leakage, which adds to his depression and he must frequently change his clothes. Further, he had difficulty urinating while standing. The Veteran explained that he is tired very easily and experiences daytime drowsiness due to his depression and his coronary artery disease status post stent placement. The Veteran further explained that due to pain and discomfort in the penile region and thoughts of his medical conditions, he tosses and turns during the night. The consultant noted that the Veteran’s medications that he takes for his service-connected heart condition have side effects including dizziness and sore legs. The Veteran reported difficulty concentrating due to embarrassment from his penile condition and depression. The Veteran stated that after the stent was placed, his employer at the time assigned him less physical work, and that he attempted to apply for jobs but was not hired due to his heart condition. The Veteran reported physical limitations due to his disabilities, including standing 15 minutes; walking 10 to15 minutes; shortness of breath requiring breaks; difficulty hearing in groups of people; and being unable to hold a gallon of water. The Veteran told the consultant that he had not driven since approximately 2015 due to fatigue. Regarding his skills, the consultant stated that the Veteran has limited computer knowledge and does not know how to use Microsoft Office or online banking. He further explained that the Veteran’s previous employment included physical labor jobs such as a loader-operator at a wood store, machine shop laborer, skidder machine operator and logger, sawmill laborer and farm labor. The consultant noted that his opinion was rendered despite any medical professional’s opinion that the Veteran can work, because medical professionals are qualified to define physical or emotional limitations extending from a condition but have no expertise in translating this information into an opinion on whether this degree of restriction or limitation prevents one from working. The consultant’s opinion was that the Veteran is unemployable and has been unable to work at substantially gainful activity levels beginning in 2009, continuing to the present, and into the foreseeable future. A May 2019 VA examiner opined as to whether the Veteran is able to engage in physical and sedentary employment. The examiner stated that the Veteran experiences no physical impairment caused by his service-connected disabilities. Notably, the examiner stated that the Veteran takes several medications that have drowsiness or fatigue as a common side effect. The examiner was asked to discuss the severity of the occupational impairment from his service-connected disabilities from September 2009 and the present and address any worsening during that time. The examiner stated that the Veteran was significantly distressed by his physical symptoms prior to the definitive treatment for penile cancer, and that symptoms improved for a time prior to his reconstruction in December 2013. The examiner stated that the Veteran’s penile pain issues then resolved but he had residual issues of inability to perform sexually and needing to sit to urinate. The examiner further noted that the Veteran’s depression increased prior to the December 2013 reconstructive surgery, and he took medication for a few months but ceased taking medication due to potential sexual side effects and has not taken any depression medication since 2013. Addressing the Veteran and his wife’s lay statements, the examiner said that the Veteran’s statements regarding his inability to work due to a back condition are not relevant to his employability due to service-connected disabilities. The examiner stated that the Veteran’s nonservice-connected disabilities significantly hinder his ability to work on a regular basis doing any job that requires him to sit or stand for long periods or lift or carry anything in his arms or overhead. The examiner explained that the Veteran’s service-connected disabilities do not affect his ability to perform at some level doing a job, and that the medications he takes for various health problems add to his tiredness, fatigue, drowsiness, and inability to focus. The Board notes that the examiner failed to discuss the Veteran’s lay contentions regarding his ability to perform sedentary employment. The examiner cited previous VA examinations, including the March 2014 VA mental disorders examination which is given low probative value due to that examiner’s contradictory statements. The examiner also listed a May 2014 statement by the Veteran where he explained that he has a severe torn rotator cuff in his left shoulder and has left knee problems if he works with it too much. Notably, the examiner did not seem to consider the Veteran’s July 2013 hearing testimony or the August 2017 TDIU Vocational Assessment Report. The May 2019 VA examiner also included a contradictory determination that the Veteran’s disabilities do not affect his ability to work but stated that his medications add to his tiredness and fatigue symptoms without reconciling the two contradictory statements. Accordingly, the May 2019 VA examiner opinion is afforded low probative value. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted. When considering the Veteran’s employment and educational background, as well as the medical evidence of record, in addition to affording him the benefit-of-the-doubt, the Board finds that the evidence supports a grant of TDIU. In finding that an award of TDIU is warranted, the Board acknowledges the negative opinion from the May 2019 VA examiner. However, considering the Veteran’s competent and credible lay statements, along with the August 2017 TDIU report, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unemployable. Moreover, the May 2019 examiner did not consider the Veteran’s lack of education and training for sedentary employment. Considering the Veteran’s employment background in positions that were physical in nature, the Board concludes that the evidence shows that the Veteran is unemployable due to his service-connected disabilities. The Board also acknowledges that the Veteran has other nonservice-connected disorder (left shoulder, lower back, and left knee) that may affect his employability as evidenced by his lay statements. However, the May 2011 letter from a potential employer did not consider other disorders and solely described the service-connected heart condition as the reason he declined to employ the Veteran. Accordingly, in considering the severity of the Veteran’s service-connected disabilities, as well as his employment and education history, and in affording him the benefit-of-the-doubt, the Board finds that the Veteran is unemployable due to his service-connected disabilities. The evidence is in favor of the grant of TDIU. Thus, entitlement to TDIU is granted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, 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.