Citation Nr: 20021407 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 03-15 222A DATE: March 25, 2020 ORDER An effective date of August 28, 2000, for the award of a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT For the entire appeal period, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for an effective date of August 28, 2000, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 remand, the Board referred the issue of extraschedular TDIU to the Director, Compensation Service (Director). In a November 2018 decision, the Board granted an effective date of February 12, 2008, but no earlier. The Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted the Veteran’s and the Secretary of VA’s (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s November 2018 decision, in part, for action consistent with the JMPR. Entitlement to an effective date prior to February 12, 2008, for the award of a TDIU. The Veteran contends that his service-connected disabilities of posttraumatic stress disorder (PTSD) and CAD rendered him unable to secure and follow substantially gainful employment from August 28, 2000, the effective date of his service connection awards, to February 12, 2008, the current effective date of the award of a TDIU. In this regard, the Veteran contends that his limited educational background and reading ability, and work history in physical jobs, create a limited occupation field which he could not obtain employment or successfully perform the duties required of him due to the physical limitations from his CAD and the mental limitations from his PTSD. After a review of the record, the Board agrees and finds that he could not perform the physical and mental acts required in a position without extensive help and accomodation. Accordingly, the Board finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the entire appeal period. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Importantly, as noted above, the Veteran does not meet the schedular criteria for a TDIU at any point pertinent to the instant appeal. The Director of Compensation Service has considered the issue of TDIU on an extraschedular basis for the entire appeal period back to August 28, 2000; accordingly, the issue may be addressed by the Board on its merits. See Wages v. McDonald, 27 Vet. App. 233, 236-37 (2015). Initially, the Board notes that the September 2019 JMPR did not touch the assignment of an effective date of February 12, 2008, for award of a TDIU. Further, the parties agreed that the issue of entitlement to a TDIU has been raised in connection with the Veteran’s claim for an increased initial rating for CAD, and thus was part and parcel to such claim. See Rice, supra. Thus, the period on appeal before the Board begins August 28, 2000, the effective date of entitlement to CAD. As noted previously, the Veteran’s educational history is limited. He left school after the ninth or tenth grade, without completing high school, nor did he obtain a General Equivalency Diploma, and he has not received any other education or training, and he could only read at a sixth-grade level. See July 2005 Application for Increased Compensation Based on Unemployability; April 2010 Application for Increased Compensation Based on Unemployability; June 2005 PTSD VA Examination Report. The Veteran’s employment history is also limited. He was employed full-time as a truck driver for a landfill company from 1978 to 1995 or 1996. He also reported that he had worked on his family farm immediately following discharge from service, and that he worked some in heating, plumbing, and carpentry. See id.; July 2005 Application for Increased Compensation Based on Unemployability; April 2007 VA PTSD Examination Report. At an initial VA examination for his PTSD in January 2002, the Veteran stated that he would very much like to work but his physical limitations and limited education prevented him from doing so, and that his wife managed their financial affairs due to his limited education. He was noted to be significantly depressed, having a low self-esteem, anxiety attacks, especially around groups of people, chronic sleep impairment, easily fatigued, dysphoria, poor concentration, hypervigilance, nightmares; with the examiner opining he would be moderately impaired. In a later June 2005 VA PTSD examination, the examiner noted much of the same symptoms, and opined that the Veteran also met the criteria for depressive disorder, which appeared to be directly related to his physical impairment and inability to work. The examiner opined that the Veteran should be considered unemployable due his limited education and physical disability, which was then identified as a back injury. Thereafter, the Veteran underwent another examination for his PTSD in April 2007, at which time the examiner noted the Veteran had symptoms of social isolation, sleep disturbance, lowered frustration tolerance, avoidance of crowded areas, exaggerated startle response, affective numbing, avoidance of activities, road rage, panic attacks, worry, nightmares, flashbacks and reduction in ability to derive true pleasure from life. The examiner did not offer an opinion regarding the occupational function of the Veteran due to PTSD at that time, but did note that he had been disabled since 1994 due to a back injury, but that he also had significant coronary artery disease. In particular, the Board also notes during this VA examination, the Veteran reported the position at the landfill was a good placement for him because he only worked with only three other people who he had known since childhood, and he had limited contact with other co-workers. While occurring after the period on appeal, the Board notes that an October 2009 PTSD VA Examination Report shows the VA examiner largely noted the same relevant PTSD symptoms as the April 2007 VA examiner; nightmares, fear of crowds, flashbacks, hypervigilance, lack of motivation to socialize, isolation and foregoing leisure activities. After noting the same symptoms as previous examination, which are largely the same symptoms the Veteran experienced for the entire appeal period, the VA examiner concluded there was total occupational and social impairment due to these PTSD symptoms. Turning to his physical impairment during such period, at a VA “Agent Orange” examination in November 2000, an examiner noted the Veteran’s history of angina prior to a coronary artery bypass the previous April 2000. The Veteran then underwent a VA heart examination in November 2002, where physical examination revealed no angina, shortness of breath, fatigue, dizziness, or syncope. A handwritten note on the examination report indicates that the Veteran’s metabolic equivalents (METs) were estimated at 7 and that a stress test was pending. Additional comments made by the VA examiner in a separate VA treatment record, however, note the examiner that same day estimating the Veteran’s METs at 10, and stating that the Veteran could not run on a treadmill for exercise stress testing due to his back disability. At a VA examination in June 2005 the Veteran reported that he had been doing well since his 2000 coronary bypass surgery, and that he was able to walk one quarter of a mile before angina led to shortness of breath. Although the Veteran’s back disability again precluded treadmill stress testing, based on his activity level, the examiner estimated that his METs would be 9. The examiner noted that the Veteran retired as a heavy equipment operator in the 1990s due to his back condition rather than his heart, it was also stressed that this was prior to his coronary bypass procedure in 2000. A final VA heart examination during the period on appeal was afforded to the Veteran in April 2008. At that time, the Veteran reported experiencing shortness of breath with exertion, sharp needle-like pain in through the back with activities like climbing one flight of stairs, walking 200 yards, lifting 25 pounds for a distance of 30 feet, or first exposure to cold air. He also reported symptoms of daily fatigue, monthly angina and dyspnea with moderate exertion. The VA examiner noted a stress test from 2006 returned normal. Dr. B.H., the Veteran’s private treatment provider, submitted a letter in October 2015 stating the Veteran has been under his care for a number of years for CAD. Dr. B.H. opined the Veteran has been permanently disabled since approximately 2000 due to his CAD. Although, Dr. B.H. indicated he had an aggressive form of CAD which required a prior bypass surgery and has had acute coronary syndrome leading to stenting in 2012, 2013 and 2015, and as a result he has been totally disabled. The record also includes a September 2015 evaluation conducted by Dr. M.L.C. bearing on the issue of TDIU, as well as a supplement to the same in August 2018. Further, the Veteran submitted an opinion letter from Dr. P.C. in February 2020. After a review of the record, and evaluation of the Veteran, both doctors opined that the Veteran had been totally disabled from the combination of his PTSD and CAD since 2000. Specifically, Dr. P.C. noted that the Veteran would not have been able to safely perform any job requiring physical labor due to his heart disability since his quintuple bypass surgery in April 2000. Dr. P.C. further opined that the Veteran dyspnea, fatigue, and risk of myocardial infarction would make most employment opportunities he was qualified for unrealistic and unsafe. He continued that even if the Veteran were able to find employment commensurate with his limited education and functional illiteracy, his PTSD symptoms would prevent him from maintaining even sedentary work. The Veteran’s treatment record from the period on appeal generally reflect the same level of impairment. Notably, the Veteran consistently reported doing well, with no chest pain or shortness of breath. In contrast however, the Veteran reported having shortness of breath after walking 50 feet in November 2000. He later reported chest pain in September 2004, however a stress test performed later that month noted METs at 10, although the test was terminated early due to the Veteran’s fatigue. Remaining private cardiology treatment records dated through 2008 also note the Veteran reporting that he was doing well with no ongoing chest pain, and that his heart disability was stable. However, as Dr. P.C. noted after a review of the record, the fact that his heart condition was stable was not equivalent to it being asymptomatic. And rather, as noted above, he did have troubles with fatigue, chest pain, and shortness of breath. Additionally, the lay statements of record support such impairment as well. In this regard, the Veteran’s son P.H. submitted statements in July 2011 and September 2015. In such statements, P.H. noted that following the 2000 surgery, P.H. could tell the Veteran’s CAD was taking a toll on his body, with a slow recovery and his activity level is severely limited. The Veteran struggled to go to the mailbox and when he returns his lips are blue and his skin is ashen. The Veteran is constantly short of breath with any type of activity, he experienced chest pain, becomes cyanotic throughout his body, sweats profusely and experienced numbness in his extremities on exertion. As a registered nurse, P.H. explained that he had the training to detect the signs and symptoms of cardiac-related conditions. In the September 2015 Buddy Statement, P.H. described the Veteran as tiring quickly, being barely able to walk any appreciable distance without needing to stop and rest. He relayed a recent incident when the Veteran was home alone and experiencing heart problems. He arrived to find the Veteran suffering from severe chest pain and sweating profusely. The Veteran had to be transported by ambulance to a hospital. P.H. did not include any timelines or temporal relationship with these events, however, the Board still finds his statements support the medical evidence of record. Similarly, the Veteran’s wife C.H. submitted statements which also note the same symptomatology described herein. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that the evidence, as described above, shows that his service-connected PTSD and CAD rendered him unable to perform the physical and mental acts necessary to secure and follow a substantially gainful occupation consistent with his education and work history since August 28, 2000. In this regard, the Veteran is significantly limited by his educational history and his difficulty reading, which precludes a large swath of employment opportunities, including most non-physical employment. Further, the Veteran’s work history is also limited to driving and physical labor. Further, even most physical labor employment opportunities require a high school diploma and require literacy. Notably, the Veteran’s CAD, which although not warranting a high rating per the ratings criteria, still limits the amount of physical activity the Veteran can accomplish, restricting any duties of a physical labor employment. Further, the Veteran’s PTSD further limits the type of employment he could accomplish. In reaching its decision, the Board finds the February 2020 opinion from Dr. P.C. highly probative in assessing the Veteran’s occupational ability during the relevant time period. In this regard, the opinion included a complete medical history and addressed the Veteran’s functional ability in light of his support and accommodations. Further, the Board’s prior award of a TDIU was based on the Veteran limited educational history and the limitation due to his PTSD as shown by the October 2009 VA PTSD examination. The Board again finds the opinion that the Veteran was totally occupationally disabled due to PTSD by such examiner, based on findings largely similar to the findings and impairment from previous examinations, highly probative. (Continued on the next page)   Consequently, the Board resolves all doubt in the Veteran’s favor and finds that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation consistent with his education and work history for the entire appeal period. Thus, a TDIU is warranted as of August 28, 2000. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.