Citation Nr: 20044576 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 05-09 462 DATE: July 2, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2005 is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for hypertensive heart disease, status post placement of implanted cardiac pacemaker, prior to July 7, 2012, and then from October 1, 2012 forward is remanded. FINDING OF FACT [Deny] Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2005. CONCLUSION OF LAW [Deny] The criteria for Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2005, have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1963 to March 1968 and then from June 1968 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2010 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. These matters were last before the Board in December 2016, at which time they were remanded for further development. As to the issue of TDIU, the Board finds that there has been substantial compliance with its remand directives and may proceed. See, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). Entitlement to a TDIU prior to June 20, 2005. The Veteran asserts that he is entitled to a TDIU prior to June 20, 2005. A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See, Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b) (2); 38 C.F.R. § 3.400 (o) (2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See, Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that TDIU was raised in a May 16, 2005 letter from the Veteran’s VA physician. The Veteran had a total combined evaluation of 70 percent as of September 11, 2003. As such, the Board finds that the Veteran meets the threshold requirement for TDIU as of September 11, 2003. Turning to the next step, TDIU may be assigned where the schedular rating is less than total, when the disabled Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 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). The issue is not whether the Veteran can find employment generally, 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Van Hoose, 4 Vet. App. at 363. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See, Gary v. Brown, 7 Vet. App. 229 (1994). With the threshold requirements satisfied, the Board finds that the Veteran has not shown that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to June 20, 2005. An April 22, 2005 VA treatment letter notes the Veteran was employed by the US Post Office and had been for 21 years. A May 16, 2005 VA treatment letter notes the Veteran reported having severe back pain while weed eating that morning then reported that he had a back injury while in the military and was worried that he re-injured his back. It was further noted that the Veteran "request[ed] another letter regarding [his] ability to work at the US Postal Office." It was further noted that the provider had written several letters stating it is not in the best interest medically for the Veteran to continue working, but that his letters had not been “heeded.” A May 20, 2005 letter from a VA physician at Baton Rouge VA Outpatient Clinic notes the Veteran "is not able to work at the US Postal Service." A July 5, 2005 private treatment record from Our Lady of the Lake Regional Medical Center notes the Veteran "works for the US Postal Service for the past 21 years." The Veteran was afforded a VA peripheral nerves examination in July 2005. The Veteran reported having difficulty remembering people since his stroke and that his "previously sharp memory is now dull." A July 20, 2005 letter from Dixon Medical Clinic notes the Veteran "is not able to work because of his" uncontrolled high blood pressure, hyperlipidemia, CVA with right facial weakness, dysphagia and heart blockage. It was further noted that the Veteran should not operate any heavy machinery. In an August 11, 2005 letter, the Office of Personnel Management advised the Veteran that due to Merit Systems Protection Board (MSPB) hearing, his application for disability retirement was approved and his agency would be asked to separate him. An October 5, 2005 Social Security Administration (SSA) Disability Determination and Transmittal notes the Veteran was considered disabled due to late effects of CVA and essential hypertension as of June 21, 2005. In a statement in support of claim dated October 24, 2005, the Veteran stated that he had been medically retired by the United States Postal Service. An October 11, 2005 Social Security Administration (SSA) Notice of Award states the Veteran was entitled to monthly disability payments beginning December 2005. At an April 2007 VA mental disorders examination, the Veteran reported leaving his job 2 at the US Post Office 2 years prior. In a September 2012 VA Form 21-8940, the Veteran asserted last working in June 2005 in the United States Postal Service. Here, the evidence of record is that the Veteran was still an employee of the United States Postal Service at least as of June 19, 2005. While it is abundantly clear that he was nearing the end of his career due to his service-connected health problems, there is no evidence that the Veteran was not an employee of the United States Postal Service as of June 19, 2005. The evidence is clear that he was seeking help to medically retire from such employment well after that date. The Board finds that the weight of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment because of his service-connected disabilities prior to June 20, 2005. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a disability rating in excess of 30 percent for hypertensive heart disease, status post placement of implanted cardiac pacemaker, prior to July 7, 2012, and then from October 1, 2012 forward, is remanded. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA heart conditions examination in February 2017 in which, as in numerous prior examinations, the examiner asserted that the Veteran has not had congestive heart failure (CHF). However, the Board notes that, since at least October 18, 2012, the Veterans VA treatment records are replete with references to the Veteran having CHF and being on an active diet and weight monitoring program specifically for CHF. As such, the Board finds that a remand is required to obtain a new VA examination that takes these treatment records into account. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertensive heart disease, status post placement of implanted cardiac pacemaker. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is requested to provide diagnostic METs scores. If these tests cannot or should not be undertaken, the examiner should provide an explanation for such finding, as well as an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness or syncope. It is insufficient for the examiner to only note that the Veteran does not experience symptoms with any level of physical activity as a reason for not providing METs scores. The examiner is asked to comment on the numerous instances of CHF being documented in the VA treatment records since at least 2012. 3. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean within the realm of possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.