Citation Nr: 20004635 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-39 458 DATE: January 21, 2020 ORDER Entitlement to an earlier effective date than February 21, 2013 for total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The objective medical evidence shows the Veteran’s service-connected disability of coronary artery disease alone did not rendered him unable to obtain and maintain substantially gainful employment at a date earlier than February 21, 2013. CONCLUSION OF LAW The criteria for an earlier effective date than February 21, 2013 for TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1970 to September 1971. The Veteran died in October 2017. The Appellant is his surviving spouse and she has been approved for substitution to pursue the claim. Entitlement to an earlier effective date than February 21, 2013 for TDIU. The effective date for an increased evaluation for a service-connected disorder is generally the date the claim was received or when entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). However, compensation can also be awarded up to one year before the date of claim, provided the claim for an increased disability rating was received within one year of the increase in disability, as shown by the evidence. That is to say, the effective date of such an increase would then be the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective on the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (a) and (b)(2); 38 C.F.R. § 3.400 (o)(1)(2). See also Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997). A TDIU claim is a claim for increased compensation and, as such, the foregoing guidelines and rules for earlier effective dates, set forth above, are therefore applicable. See Hurd v. West, 13 Vet. App. 449 (2000). The record shows that in his February 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran stated he became too disabled to work, last worked full-time and full-time work having been affected on February 10, 1989. The Veteran died in October 2017, before which he had been service-connected for coronary artery disease as his sole service-connected disability, ultimately receiving a 60 percent disability evaluation, effective from August 2010. The determination for a total rating is whether the Veteran’s service-connected disabilities, and only his service-connected disabilities, taken as a whole, rendered him unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The record shows a January 2014 rating decision granted a total disability rating based on unemployability, as the schedular rating for coronary artery disease was less than total, but the Veteran was found unable to secure or follow a substantially gainful occupation as a result of his single service-connected disability, now rated at 60. TDIU was made effective February 21, 2013, the date the claim for TDIU was received by VA. The Board also notes at this point that the United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office (RO). See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran’s coronary artery disease was evaluated under Diagnostic Code 7005, which provides a 60 percent disability evaluation when there is more than one episode of congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating contemplates documented coronary artery disease resulting in chronic congestive heart failure; or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Board briefly notes that a “MET” (metabolic equivalent of task) is the objective measure of the ratio of the rate at which a person expends energy, relative to the mass of that person, while performing some specific physical activity compared to a reference, set by convention at 3.5 mL (milliliters) of oxygen per kilogram per minute, which is roughly equivalent to the energy expended when sitting quietly. Turning to the record for the year preceding the February 2013 date of claim, the Veteran underwent a March 2012 VA examination for ischemic heart disease. The VA examiner stated a 1992 diagnosis of ischemic heart disease. He found the Veteran did not have congestive heart failure, chronic or otherwise. Although no diagnostic exercise test was conducted and no findings therefore were made pertaining to METs levels of activities, the Veteran denied experiencing symptoms such as dyspnea, fatigue, angina, dizziness, or syncope during any of the listed activities identified by their METs levels. However, diagnostic testing conducted on the day of the examination did reveal that the Veteran’s left-ventricular ejection fraction (LVEF) was at 49 percent. Under Diagnostic Code 7005, this finding falling between 30 and 50 percent indicates left-ventricular dysfunction warranting a 60 percent disability evaluation. Nonetheless, the March 2012 VA examiner, although recording the reduced LVEF, further found the Veteran’s ischemic heart disease did not impact his ability to work. Moreover, he remarked: Vet is d[iagnosed] with back injury and is noted paraplegia [sic]. Therefore [he states no] physical activity secondary to that injury and not sec[ondary] to the heart. Denies any cardiac signs or sy[m]ptoms. Limited activity is sec[ondary] to back injury. Therefore unable to p[er]form a stress test and does not p[er]form physical activities to determine a mets. To summarize, the foregoing indicates that the Veteran’s non-service-connected back injury left him non-functional in his lower extremities, he stated he is unable to perform physical activity due to that disability, the inability to do so is not due to his service-connected heart disorder, he is unable to perform METs activities testing due to the back injury, but the Veteran reported he had not experienced any of the symptoms associated with deficient METs levels, and the March 2012 VA examiner found heart disease did not impact the Veteran’s ability to work. Although the above LVEF finding of 49 percent shows the Veteran was ratable at a 60 percent disability evaluation, in considering the above findings and in making its factual determination of employability, the Board finds the record does not offer any medical or otherwise fact-based evidence which would reasonably show the Veteran’s inability to secure or follow a substantially gainful occupation solely as a result of his service-connected disability. Even though unable to undergo METs activities testing, he quite simply reported that he did not experience the very symptoms which would reflect diminished METS activities levels during testing, showing at this time, regardless of the LVEF, he was unaffected at the time by the level of severity of his service-connected coronary artery disease, but rather was restricted by his non-service-connected back disorder. Accordingly, the Board finds, in the period of one year prior to February 21, 2013, the date of claim and therefore the effective date, the Veteran’s service-connected disability of coronary artery disease alone did not render him unable to obtain and maintain substantially gainful employment. Therefore, an earlier effective date for TDIU is not warranted.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.