Citation Nr: 20043722 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 13-21 650A DATE: June 29, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to a service-connected disability on an extraschedular basis and on the basis of substitution, is granted from December 9, 2009. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran was unable to secure and maintain substantially gainful employment as a result of his service-connected rheumatic fever with secondary rheumatic heart mitral valve disease from December 9, 2009. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis and on the basis of substitution have been met from December 9, 2009. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1952 to September 1952. He died in February 2019 and the appellant is the Veteran’s surviving spouse. In May 2019, VA notified the appellant that her request for substitution had been granted. Accordingly, the appellant has been substituted as the claimant for the purpose of this claim and the issue on appeal has been recharacterized on the title page to reflect substitution. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran’s claims file. By way of background, in August 2015, the Board denied the Veteran’s claim of entitlement to a TDIU. Subsequently, the Veteran appealed the August 2015 Board decision to the United States Court of Appeals for Veteran’s Claims (Court). In April 2016, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the August 2015 Board decision insofar as it denied entitlement to a TDIU. In the April 2016 JMPR, the parties (the Veteran and Secretary of VA) agreed that the Board did not provide an adequate statement of reasons or bases for its findings and conclusions because the Board failed to show that it assessed whether the Veteran’s service-connected disability, in light of his educational and occupational history, rendered him unable to maintain substantially gainful employment. Specifically, the parties agreed the Board failed to adequately explain how the Veteran was capable of sedentary employment despite exertional limitations and given his educational and vocational background. Thereafter, in September 2016, the Board remanded the claim to the RO for further development and in a February 2018 decision, denied entitlement to TDIU on a schedular basis and remanded entitlement to a TDIU on an extraschedular basis. In an October 2018 decision, the Board again denied entitlement to a TDIU. The Veteran subsequently appealed the October 2018 Board decision to the Court, which granted a Joint Motion for Remand (JMR) in December 2019 that vacated and remanded the October 2018 Board decision. In the December 2019 JMR, the parties agreed that the Board did not provide an adequate statement of reasons or bases for its determination because the Board neglected to consider or weigh against the other VA opinions of record an addendum private cardiologist opinion. The parties also agreed the Board did not state what it understood the phrase “unable to secure and follow substantially gainful employment” to mean as it pertains to TDIU. Entitlement to a TDIU on an extraschedular basis and on the basis of substitution from December 9, 2009 Throughout the appeal period, the Veteran contended that his service-connected rheumatic fever with secondary rheumatic heart mitral valve disease prevented him from obtaining substantially gainful employment. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in this case, he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran’s level of education, special 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; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. 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 doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Veteran’s only service-connected disability was rheumatic fever with secondary rheumatic heart mitral valve disease, which was rated at 30 percent disabling from March 22, 1976. As such, the Veteran did not meet the schedular criteria for TDIU at any point during the appeal period. Nevertheless, the Veteran contended that he was entitled to a TDIU for his service-connected disability. Accordingly, the Board remanded the Veteran’s case for administrative review for extraschedular consideration by the Director of Compensation Service under the provisions of 38 C.F.R. § 4.16(b). In June 2018, the Director of Compensation Service provided the requisite opinion and this opinion is associated with the claims file. After careful review of the evidence and resolving any reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted on an extraschedular basis from December 9, 2009, which is the date of the Veteran’s increased rating claim for his rheumatic fever with secondary rheumatic heart mitral valve disease. In this regard, as entitlement to a TDIU was raised during the pendency of the Veteran’s increased rating claim, his claim for TDIU is part and parcel of that increased rating claim under Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In the present case, the Veteran reported education through his second year of high school and that he received a Veteran’s Diploma in 1954. See October 2010 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). The evidence also indicates he took one course on middle management at community college. See December 2010 Lansing Community College Transcript. After his discharge from service, the Veteran was employed for the Michigan State Liquor Control Commission and became a manager through this employment. He stopped working in July 1984, when he says his service-connected heart condition caused him to become too disabled to work. The Social Security Administration (SSA) found that the Veteran was disabled 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 Board notes that the January 1990 SSA determination includes a finding from a vocational expert that the Veteran did not have any transferrable work skills to sedentary work activity. Id. The Veteran’s medical records also corroborate that he had not worked for the entire appeal period and multiple providers confirmed work-related inabilities with his service-connected disability. However, the evidence of record includes conflicting opinions as to whether the Veteran’s service-connected heart disability was a major barrier to employment. For instance, in a September 2010 letter, Dr. N.J. found that the Veteran was totally and permanently disabled due to his service-connected heart condition and was unable to work forty hours per week. See September 2010 Letter. The Board notes that Dr. N.J. did not provide rationale for this opinion and, as such, it is assigned less probative weight. In March 2010, a VA examiner also found that the Veteran’s cardiac conditions collectively impacted his occupational activities due to lack of stamina and weakness or fatigue. On the other hand, in April 2011, a VA examiner found that the Veteran did not have any occupational limits due to his rheumatic heart disease. The examiner noted that the Veteran had several limitations from other disabilities and that his dyspnea was due to his COPD. In support of his claim, 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. During the March 2014 Board hearing, the Veteran continued to report that he experienced significant functional limitations due to his service-connected disability that impacted his ability to work. Specifically, he testified that he was frequently tired and could only walk his dog for approximately four blocks before needing to rest. See March 2014 Board hearing transcript, pp 5-8. The Veteran also explained that while he could walk up and down stairs, it would be difficult for him to do so while carrying cases. In January 2015, the Veteran underwent another VA examination to assess the severity of his service-connected heart condition. The examination report reflects that the Veteran was able to drive by himself to the examination, climb ladders, and use a snow blower but experienced shortness of breath while doing so and had his neighbor do most of the snow blowing. The VA examiner opined that the Veteran was unable to do physical and strenuous jobs, however, there was no significant limitation to sedentary employment. The Board notes that the VA examiner did not provide specific rationale for this opinion. Around the same time, in February 2015, the Veteran submitted an opinion from Dr. B.S., his private treating physician. Dr. B.S. stated that the Veteran had severe mitral valvular insufficiency, which had been documented by an echocardiogram, and, as a result, the Veteran had been unable to work. While Dr. B.S. did not provide any rationale for why the Veteran was unable to work, the Board finds Dr. B.S.’s statement regarding the severity of the Veteran’s disability to be probative as he was one of the Veteran’s treating physicians. In 2016, after interviewing the Veteran and reviewing the Veteran’s claims file, a private vocational disability expert opined that it is more likely than not that the Veteran was precluded from securing and following any substantial gainful employment, to include sedentary employment, due to his service-connected disability. See June 2016 Employability Evaluation. She noted that the Veteran reported that when he was employed, he primarily kept manual records and never operated a computer. The expert reasoned that the Veteran had no transferrable skills based on his vocational profile and that he lacked computer skills. Additionally, the expert noted that the Veteran would also be excluded from unskilled sedentary work due to the extensive fatigue caused by his service-connected disability. Although the vocational disability expert does not possess the medical training to determine whether the symptoms the Veteran experiences are caused by his service-connected disability, the Board finds her opinion assessing the Veteran’s employment skills as they relate to his educational and/or vocational history to be probative. Moreover, the expert based her opinion on a review of the Veteran’s entire claims file. Given the conflicting evidence of record, the Veteran was again afforded a VA examination in May 2017. The May 2017 VA examiner opined that the Veteran, based only on his service-connected mitral valve disease, would be able to perform sedentary and light physical work. The VA examiner explained that there was no objective evidence to support a conclusion of decompensated mitral regurgitation and, disregarding age and the Veteran’s other disabilities, an individual with only mitral valve disease manifested in this Veteran would be capable of exertion of about seven metabolic equivalents (METs). The VA examiner stated that his opinion was supported by current findings and that the Veteran could perform nine to ten METs on two stress tests 32 and 42 years after discharge. In September 2017, the Veteran was examined by a private board-certified cardiologist. After interviewing the Veteran and reviewing his claims file, the private cardiologist 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 were primarily responsible for the Veterans’ physical limitation. The cardiologist 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. In this regard, the cardiologist reasoned that the Veteran’s cardiac conditions affected the left ventricle and led to left ventricular dysfunction and eventually heart failure. The cardiologist noted that the symptoms of heart failure, which include shortness of breath and fatigue, are the same regardless of the cause. The cardiologist further concluded that it is less likely than not that COPD was primarily responsible for the Veteran’s physical limitations. The cardiologist 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, led to the development and worsening of heart failure which had at least as likely as not precluded the Veteran’s inability to secure and follow substantially gainful employment. The Board finds this opinion probative as the cardiologist reviewed the claims file, cited to medical journals as references for his findings, and was able to explain, from a medical standpoint, why COPD was not the cause of the Veteran’s physical limitations. In February 2018, a VA examiner disagreed with the September 2017 cardiologist’s conclusions. The VA examiner concluded that the Veteran’s mild to moderate mitral regurgitation was not a cause of significant, much less, total disability. The VA examiner reasoned that because the 2010 stress test results showed the Veteran was capable of eight METS, he was not totally disabled due to heart disease. The VA examiner further 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 ten 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 examination also noted the left ventricular hypertrophy and premature ventricular complexes (PVCs) noted in the Veteran’s medical records are very unlikely to be related to his mitral regurgitation. The Board also finds this opinion probative as the VA examiner reviewed the claims file, cited to medical literature to support his opinion, and explained why he disagreed with the September 2017 private cardiologist’s opinion. In September 2018, the September 2017 private cardiologist provided an addendum opinion to address the February 2018 VA examiner’s conclusions. The private cardiologist explained that the February 2018 VA examiner’s estimate of the Veteran’s exercise capacity and degree of disability based upon repeated stress tests, which used the Bruce Protocol to estimate exercise capacity, was flawed. The private cardiologist explained that the Bruce Protocol is not the preferred exercise protocol to accurately measure functional capacity in patients with heart disease and cited to research showing that the Bruce Protocol overestimates actual measured oxygen consumption by more than two METs in patients with ischemic heart disease, such as the Veteran. The private cardiologist noted that the Bruce Protocol was used to estimate exercise capacity at nine to ten METs during the February 1989 and September 1995 VA examinations, which the February 2018 VA opinion relied upon, but that these estimates were incorrectly done as they were based on the highest level of exercise attained instead of the highest level of exercise completed. In this regard, the cardiologist noted that while the Veteran reached stage three of these tests, he only completed stage two, which indicates METS of seven to eight. However, considering that this protocol may overestimate METs by two METS, the cardiologist opined that it was at least as likely as not that the Veteran’s actual capacity was five to eight METS on those tests. The cardiologist further explained while the Veteran’s exercise was limited by symptoms of dyspnea and fatigue on these tests, the stages when the Veteran experienced these symptoms was not normal. Additionally, the September 2018 private cardiologist further explained why it was impossible to attribute the Veteran’s disability to any one heart condition. Specifically, the cardiologist reiterated that mitral regurgitation was responsible for the Veteran’s early symptoms but that the progressive worsening of his condition over time was due to the combination of this other heart and lung diseases. In this regard, the cardiologist cited to medical literature showing that rheumatic heart disease complicated by coronary artery disease is associated with progressively worse heart failure in over 90 percent of patients and medical literature showing that coronary artery disease complicated by mitral regurgitation is associated with a worse prognosis. Thus, either condition can aggravate the other making it impossible to assess which one is the primary cause of symptoms. Given this impossibility, the cardiologist found it is at least as likely as not that the Veteran’s current level of cardiac disability was in part due to his service-connected mitral valve disease, which caused the Veteran to be unable to find employment due to his inability to meet the requisite physical demands. The private cardiologist pointed out that the February 2018 VA examiner, like the other previous VA examiners, did not consider nor discuss whether it was impossible to attribute the Veteran’s disability to any one condition. The Board finds this opinion highly probative as the cardiologist explained the discrepancies between his findings and that of the VA examinations of record and also further detailed why it was impossible to attribute certain symptoms solely to the Veteran’s service-connected disability. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful employment as due to his service-connected disability. In this regard, while the medical opinions of record disagree with the extent that the Veteran’s disability impacted his ability to perform work, the opinions generally indicate that his service-connected disability impacted his ability to perform physical work. Both the January 2015 and May 2017 VA opinions indicate that the Veteran was unable to perform heavy physical activities due to his service-connected disability while the September 2017 and 2018 private cardiologist opinions reflect the Veteran experienced marked limitation of physical activity and would be unable to keep up with the physical requirements of employment at any exertional level. Additionally, the Veteran consistently reported needing to rest after physical activity and becoming fatigued easily. See, e.g. July 2016 Affidavit. Given that the Veteran’s primary employment involved physical labor and often heavy lifting, the Board finds it unlikely that he would have been able to obtain an office-type position or position where he would not have to engage in physical activity in light of his educational and vocational background. Although the Veteran attended one community college middle management course, the evidence of record indicates that the Veteran received no additional education, training, or transferrable skills after he stopped working. Moreover, both the SSA vocational expert and the June 2016 private vocational expert found that the Veteran did not have any transferrable skills while the June 2016 private vocational expert found he lacked any computer skills. The Board finds these opinions highly probative evidence as to the Veteran’s ability to maintain a less physically demanding job. To the degree that the Veteran would have been able to perform a job requiring light physical work, the Board finds that from a practical standpoint, the Veteran would have been too limited to perform such an occupation since his disability affected his ability to concentrate and caused fatigue, which would also impede workplace productivity. The Board also acknowledges the negative determination made by the Director of Compensation Service in June 2018. The Director noted the Veteran had several non-service-connected disabilities that had not been differentiated from the Veteran’s service-connected disability and, thus, TDIU was not warranted because no service-connected disability was identified individually or collectively as the sole reason for the Veteran’s unemployability. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the September 2017 and 2018 private opinions reflect that a differentiation cannot be made between the impact from the Veteran’s service-connected heart disability and his non-service-connected heart conditions. The Board finds this probative evidence that clearly distinguishing the problems that the Veteran has with his service and non-service-connected heart problems is unworkable in this case while the VA opinions of record reflect some level of physical impairment solely due to the Veteran’s service-connected disability. Moreover, the Board, is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this regard, the Board reviews the Director’s determination de novo and it does not constitute evidence that must be weighed. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Accordingly, given the Veteran’s consistent, credible statements and the supporting evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful employment due to his service-connected rheumatic fever with secondary rheumatic heart mitral valve disease. As such, the Board grants TDIU on an extraschedular basis from December 9, 2009. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.