Citation Nr: 21003236 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-34 296 DATE: January 21, 2021 ORDER The claim of entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 25, 2017, is denied. FINDING OF FACT For the rating period prior to May 25, 2017, the Veteran’s service-connected disabilities are not shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU prior to May 25, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1990 to January 2001. He timely appealed certain matters from a November 2015 rating decision. Subsequently, in March 2017, the Agency of Original Jurisdiction (AOJ) awarded service connection and assigned a 100 percent disability rating for coronary artery disease with myocardial infarction [hereinafter, heart disability], effective August 5, 2013; and assigned a 60 percent evaluation for heart disability, effective November 1, 2013. In November 2018, the Board found that the matter of a TDIU was inextricably intertwined with a higher rating for the Veteran’s heart disability; and remanded both matters for additional development. In July 2020, the AOJ awarded TDIU benefits, effective May 25, 2017. Later that same month, the Board denied a higher rating for heart disability; and remanded the matter of a TDIU prior to May 25, 2017, for additional development. Given that heart disability and TDIU previously were intertwined, the matter of entitlement to a TDIU must be adjudicated over the course of the entire appeal period—that is, from August 5, 2013, and prior to May 25, 2017. Here, substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decision in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). For the period prior to May 25, 2017, a finding of entitlement to TDIU is dependent upon consideration of the impact of each of the Veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. §§ 4.16. Age is not a factor. 38 C.F.R. §§ 4.19. The Veteran had worked full-time from September 2009 to May 2012 as a food service cook. VA examination reports in October 2012 reveal that neither the Veteran’s service-connected lumbar disability nor his service-connected left knee disability impacted the Veteran’s ability to work. In July 2013, the Veteran was hospitalized in Guam for an acute myocardial infarction. He then was medevac’d from Guam and hospitalized for evaluation from July 2013 to August 2013; a cardiac catherization showed severe stenosis, and the Veteran required placement of a bare metal stent. Since the start of the appeal period on August 5, 2013, the Veteran has met the schedular eligibility criteria for TDIU; and for a portion of this period, until November 1, 2013, he was entitled to a temporary total evaluation. A combined 70 percent evaluation was assigned from November 1, 2013, which included a 60 percent rating for heart disability. The combined rating increased to 90 percent effective June 30, 2015. Prior to May 25, 2017, the Veteran had completed three years of college education and had no other education or training. He was taking classes toward general studies from July 2013 through December 2013. He reportedly was not working in September 2013 because he wanted to go back to school. VA examination reports in October 2013 and in February 2014 revealed that the Veteran’s service-connected hypertension did not impact his ability to work. Vocational rehabilitation records show that the Veteran attended college to attain an undergraduate degree in management studies from August 2014 to May 2018. A VA examiner in February 2014 noted improvement of the Veteran’s ischemic cardiomyopathy. Echocardiographs revealed an ejection fraction of 35 percent in July 2013 and an ejection fraction of 55 percent in September 2013. The examiner reviewed the Veteran’s medical history, and opined that the Veteran’s heart disability did not impact his ability to work. The Veteran reported that he currently was employed with deskwork in August 2014. He reported a recent hospital admission due to atypical chest pain which originated in the left arm and was unlike his prior cardiac events. Testing in June 2014 revealed findings most likely representing a tiny infarct at the cardiac apex; mild left ventricular dilatation was noted. A review of systems in August 2014 revealed no chest pain or discomfort and no palpitations. The Veteran was evaluated in May 2015 for transient ischemic attacks. He reported having two episodes of confusion and dysarthria that resolved spontaneously several weeks earlier; currently, he was neurologically normal. He again reported lightheadedness, slurred speech, and confusion in July 2015. He reported that he first got symptoms of possible transient ischemic attacks last January 2015 and reported “seeing stars.” The physician at the time emphasized aggressive and optimal control of all his vascular diseases to prevent progression of lesions. Signs and symptoms of stroke and transient ischemic attacks were discussed regarding the need of emergent treatment. Records showed that the Veteran used a CPAP (continuous positive airway pressure) machine for service-connected obstructive sleep apnea in August 2015. The Veteran underwent a VA examination in November 2015. The examiner noted the diagnosis of cerebral microvascular disease secondary to hypertension, and that the Veteran’s medical history revealed no lasting sequelae from prior episodes of transient ischemic attacks. Continuous medication was required for control. Examination in November 2015 revealed normal speech, gait, and strength. There were no other pertinent findings. Brain MRI scans from May 2015 were consistent with ischemic small vessel disease. The November 2015 examiner opined that neither the Veteran’s transient ischemic attacks nor his cerebral microvascular disease affected his ability to work. In February 2016, the Veteran reported that he had to cancel a summer course due to his wife’s illness; and that his medical disabilities had not interfered with his training. VA records noted the Veteran’s occupation as a student in April 2016. A VA examiner in July 2016 noted that the Veteran’s tinnitus did not impact his ability to work. A VA examiner in August 2016 noted that the Veteran’s headaches were generally associated with uncontrolled hypertension, and did not impact his ability to work. His medical history noted migraine headaches occurring twice weekly and lasting up to one hour. Another examiner in August 2016 noted that the Veteran’s erectile dysfunction did not impact his ability to work. Another VA examiner in September 2016 noted that the Veteran’s hypertension did not impact his ability to work. The Veteran underwent a VA examination on September 16, 2016. The examiner noted the diagnosis of degenerative disc disease of lumbar spine at L4-L5 with herniated nucleus pulposus at L5-S1, with spondylosis and left lower leg radiculopathy [hereinafter, lumbar disability]. The Veteran could not lift over fifteen pounds; he could not stand in one place for over twenty minutes. He could not climb over one flight of stairs without a break. He could not run. Involvement of L4-L5-S1-S2-S3 nerve roots (sciatic nerve) were identified. Following examination, the September 2016 examiner noted that the Veteran’s lumbar disability did impact his ability to work. As noted herein, manual labor was restricted. Regarding sedentary labor, the Veteran could not sit longer than fifteen minutes without changing position; he could not bend and twist frequently. The Veteran underwent another VA examination on September 16, 2016. The examiner noted the diagnosis of patellofemoral pain syndrome of left knee [hereinafter, left knee disability]. The Veteran’s left knee always was sore. He took medication and wore a knee brace. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. Prolonged standing and sitting triggered flare-ups. Following examination, the September 2016 examiner noted that the Veteran’s left knee disability did impact his ability to work. Regarding manual labor, the Veteran could not run; he could not climb into and out of motor vehicles throughout the day due to left knee pain with frequent flexion. He could not walk over fifteen minutes or stand longer than twenty minutes without a break for the left knee. Regarding sedentary labor, the Veteran could not squat or kneel on the left knee; and he could not sit longer than fifteen minutes without straightening the left leg. Another VA examiner in September 2016 noted that the Veteran’s cerebral microvascular disease did not impact his ability to work. Significantly, the Veteran’s occupational history includes working as a forklift driver from August 2016 to May 2017. The Veteran reportedly left that job on May 24, 2017, after experiencing headaches, which caused sensitivity to light and blind spots and dizziness and lightheadedness; and resulted in the Veteran’s hitting an object while driving the forklift. The Board notes that the Veteran requested extra-schedular consideration in January 2017; as noted above, his service-connected disabilities meet the schedular criteria for TDIU throughout the rating period. Moreover, the Veteran still worked as a forklift driver in January 2017. While the Veteran’s prognosis for improvement remained guarded, such evidence does not support assignment of an extraschedular TDIU. Another VA examiner in March 2017 noted that the Veteran’s heart disability did impact his ability to work. The Veteran was not able to perform heavy lifting or climbing stairs. Specifically, in March 2017, the Veteran reported that his lumbar disability still caused problems and that his obstructive sleep apnea was being managed. He reportedly still worked as a forklift driver. The Board finds the Veteran’s reports of continuing work in March 2017 to be credible. In June 2017, the Veteran reported that he had to drop one course due to his medical conditions; and that he also stopped working. His program of vocational rehabilitation training was completed in May 2018, and the Veteran was referred for employment assistance. TDIU benefits were awarded effective May 25, 2017, the date following the Veteran’s last day of full-time employment. In this case, prior to September 16, 2016, the evidence does not support a finding of unemployability due to service-connected disabilities; his heart disability alone, rated 60 percent disabling, is not sufficient to preclude all forms of substantially gainful employment; less strenuous, non-physical work was not proscribed, and the Veteran was attending college studying for a bachelor’s degree in management studies. His continuing studies at the time suggest the Veteran has the educational background for more sedentary-type employment. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Further, no examiner has found significant detrimental effect on function, occupational or otherwise, prior to September 16, 2016, for any service-connected disability. Importantly, the only medical opinions addressing this matter weigh against the claim. As of September 16, 2016, VA examination reports reveal that service-connected lumbar disability and service-connected left knee disability did impact his ability to work; however, the Veteran continued working until May 24, 2017. While examiners throughout the rating period observed limitations that impact the Veteran’s ability to work in his usual field, there is no competent medical evidence to support the finding that the Veteran’s service-connected disabilities precluded substantially gainful employment prior to May 25, 2017. The evidence of record in fact shows that prior to that date he was engaged in productive activity, either working or functioning in a classroom setting. The evidence is against the award of TDIU benefits prior to May 25, 2017. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.