Citation Nr: 21000766 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-30 421 DATE: January 6, 2021 ORDER Entitlement to total disability due to individual unemployability is granted. FINDING OF FACT The Veteran’s service connected coronary artery disease and related conditions render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to total disability due to individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to March 1970. The Veteran’s claims were most recently remanded by the Board in a July 2020 decision. The Board finds that the RO has substantially complied with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to total disability due to individual unemployability The Veteran contends he is unable to work due to his service-connected disabilities. In his August 2020 application for increased compensation based on unemployability, the Veteran indicated he was unable to work due to service-connected coronary artery disease resulting in a bypass and permanent atrial fibrillation. The Veteran indicated that he has not been able to work since July 1995. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the 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 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in a recent precedential decision issued by the United States Court of Appeals for Veterans Claims, they offered guidance in defining “unable to secure and follow a substantially gainful occupation.” In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has 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 U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: 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. The Veteran was found to have service-connected coronary artery disease (CAD) with atrial fibrillation and valvular disease (due to Agent Orange) rated at 30 percent from September 30, 1996, and rated at 60 percent from December 17, 2010; and surgical chest scar associated with CAD rated at 0 percent from March 4, 2020. The Veteran’s combined evaluation was 30 percent from September 30, 1996; and 60 percent from December 2010. Therefore, the Veteran meets the schedular rating criteria for TDIU from December 2010. 38 C.F.R. § § 4.16(a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The Veteran’s August 2020 Application for Increased Compensation Based on Unemployability (application) indicates that the Veteran stopped working full time in July 1995. The Veteran reported he was unable to continue his career as a mechanic following a 1992/1993 quadruple bypass surgery due to his CAD. The Veteran reported that he attempted to work following surgery but was unable to continue working. The Veteran reported he has heart pain when completing basic activities of daily living such as vacuuming, making his bed, general pickup, and walking. The Veteran reported he experiences chest pain when climbing stairs or walking an incline. The Veteran reported he had been living in an Independent Living Center that provides housekeeping and meals since April 2018. The Veteran reported that he cannot lift, push, pull, stand, stoop, or any of the physical functions of his job. The Veteran also reported he was diagnosed with non-service-connected Huntington’s Disease in 2019. The Veteran indicated that he has a high school diploma, but no further schooling or other training. The Board notes that the Veteran’s military records indicate that he completed 11th grade. The Veteran’s military personnel records show that his military occupational specialty was as a heavy vehicle driver. The Veteran’s past civilian work was as a mechanic and a welder. The Veteran submitted records from the Social Security Administration (SSA) indicating the Veteran had been found unable to engage in substantial gainful employment. While SSA records are not controlling for VA determinations, they may be ‘pertinent’ to VA claims. See Murzncsak v Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). At the January 2018 hearing, the Veteran testified that his 2013 VA heart examination either misheard or misquoted him. The Veteran indicated that he said during a phone examination he was asked if he could mow the grass or vacuum his apartment, he reported that he could not, but that the VA examination reported indicated he responded that he could perform those tasks. The Veteran reported chest pain whenever he walks, even when he does so slowly. The Veteran’s witness testified that he gets out of breath making the bed at night and cannot do any other chores. The witness further testified that the Veteran had to take a break walking from the parking lot to the hearing room. The Board also notes the Veteran was confused by several decades on the date he last worked. The Veteran’s September 2018 treatment notes indicate that he lives in an independent living facility. Treatment notes indicate the Veteran has jerking and involuntary movements, delayed response to questions, and some difficulty formulating speech. The treatment notes indicate the Veteran has a history of 4 vessel CABG in 1992 and PTCA in 1995. A May 2018 echocardiogram indicated normal left ventricle ejection fraction, but severely restricted left coronary cusp, mildly calcified annulus of the mitral valve with mild to moderate regurgitation, severely dilated left atrium, mildly dilated right atrium, and moderate regurgitation of the tricuspid valve. The echo further noted increased right ventricular systolic pressure consistent with moderate pulmonary hypertension. In March 2020, the Veteran was afforded a VA examination. The examiner indicated recent treatment notes indicated chronic weakness, dizziness, malaise, angina, dyspnea, and syncope. The examiner noted the Veteran appeared frail, weak, fragile, and had a very unstable, staggering gait. The Veteran reported daily angina brought on by normal activities of daily living and taking nitroglycerine at least once daily due to 4-5 feelings of chest pain a day. In October 2020, an addendum opinion was submitted by a VA examiner based solely on a record review. The examiner indicated the Veteran would be able to perform light work based solely on his cardiac impairment. Based on the foregoing, the Board finds that the totality of the evidence supports a finding that the Veteran’s service-connected heart condition renders him unemployable. Specifically, the evidence suggests that the Veteran has not worked due to his heart condition since 1996 and has significant difficulties with activities of daily living due to chest pain. As the Veteran is unable to physically perform the tasks needed in his past work nor any other work, the evidence supports a finding of unemployability due to his service-connected disabilities. Accordingly, a TDIU is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.