Citation Nr: 21062675 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-06 860 DATE: October 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective October 20, 2014. REMANDED Entitlement to a rating greater than 30 percent for coronary artery disease (CAD) is remanded. Entitlement to a rating greater than 30 percent for renal insufficiency with edema is remanded. Entitlement to an effective date prior to October 20, 2014 for the assignment of a 30 percent rating for CAD is remanded. Entitlement to TDIU prior to October 20, 2014 is remanded. FINDING OF FACT The Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU were met effective October 20, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to October 1969. The Veteran died in February 2017. The appellant is his surviving spouse who was properly substituted as the claimant in October 2017. A Board hearing was held in October 2019. No transcript of the hearing is available due to audio malfunctions. The appellant was informed in July 2021 and declined the opportunity to appear at a new hearing. A claim for TDIU has been raised by the record. Accordingly, the Board has characterized the issues on appeal to include a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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)(1), 4.15. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 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(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b). The Court defined the term to have 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, which is pertinent in this case, includes consideration of: 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 met the threshold requirement for entitlement to TDIU on a schedular basis as of October 20, 2014. As of that date, the Veteran was service connected for type II diabetes mellitus (diabetes) rated as 20 percent disabling, renal insufficiency with edema rated as 30 percent disabling, and CAD rated as 30 percent disabling, with a total combined rating of 60 percent. The Veteran's renal insufficiency and CAD were granted as secondary to his diabetes, indicating all his service-connected disabilities had a common etiology, and the Board will therefore consider the combined ratings as one disability pursuant to 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a September 2016 VA Form 21-8940, the Veteran asserted he became unable to work due to a combination of his service-connected disabilities in July 2006. Prior to that, he had worked for 40 years for CSX Transportation as a Yardmaster. In a September 2019 private medical opinion, Dr. M.C. opined the Veteran had been completely unemployable due to his medical conditions. Dr. M.C. reviewed the medical evidence and interviewed the appellant and the Veteran's daughter. Dr. M.C. noted the Veteran underwent cardiac catheterization and stent placement in October 2014 and again in April 2015 due to his CAD, but continued to experience unprovoked, episodic chest pain afterward. In an interview with Dr. M.C., the appellant stated that the Veteran had been forced to retire in 2006 due to poorly controlled diabetes, and since 2014 had experienced chest pain, shortness of breath, periods of lost consciousness, and had difficulty managing his diabetes. She further stated that during the last few years of his life, the Veteran had trouble breathing after walking down stairs or walking to the car, had trouble thinking and concentrating, and had a poor memory. After the record review and interview, Dr. M.C. opined the Veteran was unable to keep the job he held for 40 years due to frequent hypoglycemic episodes occurring two times per week during which he would become confused, disoriented, and unable to perform work. And after he stopped working, the Veteran experienced a steady decline in overall functionality with a progression of his coronary artery disease. The physician concluded that while the Veteran's diabetes initially caused his unemployability, it was later potentiated by his CAD and renal insufficiency. A June 2015 VA examiner opined the Veteran's CAD and renal insufficiency had no impact on the Veteran's ability to work; however, the examiner provided no support for the opinion, only stating the Veteran had last worked in July 2006. Considering the Court's holding in Ray, the Board finds significant that the Veteran worked as Yardmaster for the entirety of his post-service working life and there is no indication that he has any other occupational experience or training. Dr. M.C.'s September 2019 opinion demonstrates that the limitations resulting from the Veteran's service-connected disabilities would have prevented him from obtaining substantially gainful employment in the field in which he was most qualified, or any substantially similar field with comparable physical and mental requirements. The Board therefore finds the Veteran was rendered unable to obtain and maintain a substantially gainful occupation due to the limitations resulting from his service-connected disabilities and, as of October 20, 2014, met the schedular criteria for TDIU. Accordingly, TDIU is granted effective October 20, 2014. REASONS FOR REMAND 1. Increased Ratings and Earlier Effective Date The record indicates that there are outstanding relevant VA treatment records. In his October 20, 2014 claim, the Veteran reported that he had been treated at a VA Medical Center earlier that month. The record also includes reports of hospital admissions in September 2013, October 2014, November 2014, and December 2014. However, the only VA treatment record associated with the record are dated in April 2015 and from February 2016 to March 2017. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 2. TDIU prior to October 20, 2014 Finally, because the appellant asserts the Veteran was entitled to an increased rating and an effective date prior to October 20, 2014 for the assignment of an increased rating for CAD, a decision on those issues could significantly impact a decision on the issue of entitlement to TDIU prior to October 20, 2014. The issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from September 2013 to February 2017. 2. Then readjudicate the claims. If any benefit sought is not granted, the appellant and her representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mine, 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.