Citation Nr: 21001494 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-35 655A DATE: January 8, 2021 ORDER Entitlement a total disability individual unemployability (TDIU) rating based on service-connected disabilities for the period from August 3, 2020, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent before August 3, 2020, and in excess of 30 percent thereafter for coronary artery disease (CAD) is remanded. Entitlement to a TDIU for the period prior to August 3, 2020, is remanded. FINDING OF FACT From August 3, 2020, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria to a TDIU, from August 3, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1966 to August 1975, with additional periods of reserve service thereafter. He is a recipient of multiple medals, badges, and commendations reflecting valiant service, including the Purple Heart Medal. This matter was remanded in October 2018 and September 2020 for further development. Upon Board remand in September 2020, the RO conducted additional development that yielded a new VA examination and treatment records. Generally, the Board may not consider evidence unless first reviewed by the Agency of Original Jurisdiction (AOJ), unless a waiver is obtained. 38 C.F.R. § 20.1305; 38 C.F.R. § 19.37 (b). The AOJ reviewed the evidence in a December 2020 rating decision denying increased rating. To the extent there was any procedural error, the Board finds no prejudice as the matter is being remanded. TDIU The issue of entitlement to TDIU was raised by the record. TDIU is considered part and parcel to the initial increased rating claim for CAD. Rice v. Shinseki, 22 Vet. App. 447. Accordingly, as TDIU is part of the Veteran’s July 2012 claim for service connection for CAD, the period on appeal extends to the date VA received the service connection claim, i.e., July 20, 2012. Following consideration of the record, the Board finds that entitlement to a TDIU is currently warranted for the period from August 3, 2020 forward. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of 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. § 4.16 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381(2013). For those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by the Director of Compensation Service, when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation Service is so warranted for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). From July 20, 2012 to August 3, 2020, the Veteran is in receipt of a 50 percent rating for his posttraumatic stress disorder (PTSD) and a current 10 percent rating for CAD. The Veteran’s combined disability rating for this period is 60 percent. By an October 2020 rating decision, the rating assigned for CAD was increased to 30 percent, effective from August 3, 2020. Such translated to a combined rating of 70 percent, which also effective from August 3, 2020. Thus, for the period from August 3, 2020, the Veteran meets the requirements for schedular consideration for TDIU. The remaining period, prior to August 3, 2020, when he does not meet the schedular requirements, are addressed in the remand portion of this decision. Turning to the evidence, as to education, the Veteran completed a year and a half of college. With respect to employment, he worked as a truck driver and owned a petroleum transportation company. Treatment records document a temporary retirement in 1997 due to health concerns and a second retirement in 2005 when his company ultimately dissolved. Records thereafter, to include the December 2020 CAD examination report, confirm that the Veteran is retired but most recently worked as a truck driver. Unemployment for the relevant period of August 3, 2020 forward, is established. What remains is ascertaining whether the Veteran’s service-connected disabilities render him unemployable. In 2020, the CAD VA examiner concluded that the Veteran’s heart conditions impacted his ability to work. The examiner explained that the Veteran’s heart conditions precluded him from engaging in his former employment as a truck driver. The examiner also opined that the Veteran’s disabilities rendered him unable to walk long distances, lift heavy objects, or stand for long periods. Likewise, contemporaneous 2020 treatment records and correspondence document the Veteran’s suffering from syncopal episodes resulting in what is described as “blackouts and dizziness.” The above combined impairment would preclude obtaining and maintaining physical employment as they represent severe hinderance to work safety in physically demanding positions. As to the Veteran’s PTSD, his current 50 percent rating was predicated on persistent delusions, disturbances of motivation and mood, flattened affect, difficulty in establishing and maintaining effective work and social relationships, chronic sleep impairment, anxiety, suspiciousness, depressed mood, and occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. Treatment medical records do not contradict the above, but note difficulty with depression, anxiety, concentration and focus, avoidant behaviors and tendency toward social isolation. The combined impact of the Veteran’s psychological impairments would likely preclude maintaining gainful sedentary employment. As indicated, the Veteran’s cognitive and social abilities are generally impaired and only further worsened under stressful environments. The Board finds it likely, if not highly probable, that being in an unfamiliar work environment with the burden of learning new tasks would be highly stressful to the Veteran. This stress would only be magnified by fluctuating mood, avoidant, and isolationist behaviors and the unpredictable nature of his CAD symptomatology. In summary, the pertinent examination reports and treatment records from the period on appeal reflect severe impairment associated with his service-connected disabilities. Given the positive evidence of record, and no opinion to the contrary, entitlement to a TDIU from August 3, 2020 is granted. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent before August 3, 2020 and in excess of 30 percent thereafter for CAD. The Veteran underwent a VA examination in December 2020. A clarifying opinion is required. In relevant part, beyond CAD, the examiner diagnosed stable angina, supraventricular arrhythmia, hypertensive heart disease, and moderate pulmonary hypertension. The examiner explained the new diagnoses were all etiologically related to service-connected CAD. The examiner also opined that the Veteran’s collectively diagnosed heart conditions resulted in an estimated workload of >7-10 METs; consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph). Such is equivalent to a 10 percent rating under the CAD diagnostic code of 7005. 38 C.F.R. § 4.104. That said, in rendering this estimation the examiner did not address the Veteran’s syncopal episodes which were described in the current symptoms section of the examination and noted in treatment medical records. Such an omission is important, as per the examination report, the presence of syncope is relevant to the proper estimation of a METs workload; estimation is required in instance case. Moreover, the Veteran reported that his episodes of syncope have been present for five years and are greatly impairing. This omission must be addressed on remand. 3. Entitlement to a TDIU for the period prior to August 3, 2020. The claim is inextricably intertwined with the above remanded claim for increased rating, therefore adjudication is currently inappropriate at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, the Board notes that a completed a VA Form 21-8940 is not of record, on remand one should be obtained. The matters are REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits) and ask him to complete those forms accurately updated to the present and submit them. He should be advised that the relevant period on appeal is from July 20, 2012 to August 3, 2020. He should also be advised that the information therein is critical to proper adjudication of his TDIU claim. Obtain an addendum opinion from the December 2020 examiner. The need for additional examination is left up to the discretion of the examiner. A clarifying opinion is required to address the conflicting evidence of record. In relevant part, beyond CAD, the examiner diagnosed stable angina, supraventricular arrhythmia, hypertensive heart disease, and moderate pulmonary hypertension. The examiner explained the new diagnoses were all etiologically related to service-connected CAD. The examiner also opined that the Veteran’s collectively diagnosed heart conditions resulted in an estimated workload of >7-10 METs; consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph). However, in rendering this estimation the examiner did not address the Veteran’s syncopal episodes which were described in the current symptoms section of the examination, noted in treatment medical records, and repeatedly reported. To the contrary, syncopal episodes were not selected as a symptom. Such an omission is important, as per the examination report, the presence of syncope is relevant to the proper estimation of a METs workload; estimation is required in instance case. Moreover, the evidence must be addressed as the Veteran reported that his episodes of syncope have been present for years and are his most greatly impairing symptom. The significance of this evidence must be addressed and a rationale for the Veteran’s estimated METs must be provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.