Citation Nr: 21063789 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-07 141 DATE: October 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Codes 7005-7017, 7802, 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1968 to November 1977. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board issued a decision finding that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was not on appeal. In January 2020, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (the Court). In June 2020, the parties signed a Joint Motion for Partial Remand (JMPR) that was granted by the Court on June 17, 2020, vacating the Board's January 2019 decision, and remanding the issue to the Board for readjudication. In February 2021, the Board remanded this matter for more development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has otherwise raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran seeks entitlement to a TDIU, asserting that his heart condition precludes prevents him from securing or following any substantially gainful occupation. See June 2020 JMPR. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341,4.16, 4.19. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "Substantially gainful employment" contains economic and noneconomic components. 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," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). TDIU may also be considered on an extraschedular basis. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38 C.F.R. § 4.16(b). The Veteran seeks entitlement to a TDIU, contending that his heart condition prevents him from securing or following any substantially gainful occupation. The Veteran filed the underlying increased rating claim for ischemic heart disease (IHD) in his May 2016 Notice of Disagreement (NOD), at which time he noted that he was "additionally appealing the VA's failure to award benefits at the 100% rate due to total unemployability (TDIU)." See May 2016 Notice of Disagreement. Accordingly, the Board finds that a claim for TDIU is part and parcel of the underlying increased rating claim for IHD. In his April 2021 application for a TDIU, the Veteran noted that he had worked as a CEO until June 2004 and prior to being a CEO he worked as a marketing director. Here, there remains an open question as to whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities. During the relevant appeal period, the Veteran was service connected for ischemic heart disease at a 60 percent disability rating; diabetes mellitus II at 20 percent disability rating; and a surgical scar at 0 percent disability rating. The Board acknowledges that Prior to February 2021 the Veteran had a 30 percent rating or below for his IHD disability. The Board also notes that the Veteran had a 100 percent disability rating from February 9, 2021 to June 1, 2021. Thus, prior to June 2021, the Veteran did not meet the schedular rating criteria, and if warranted would require a referral to the Director of Compensation for extra, as the Board may not grant a TDIU in the first instance. However, the Board does not find that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran's 2010 Social Security and disability application revealed that the Veteran worked as a Director of Marketing, VP, and a CEO. The Veteran's positions required him to supervise employees. His spouse indicated that the Veteran does not kayak as often, and no longer runs or rides bicycles. She indicated that biking and running hurts his neck and back. The Veteran also has 70 percent hearing loss in both ears. The Veteran is able to load and unload the dishwasher, do laundry, and some yard work. The Veteran reported that he gets winded easily. The Veteran underwent a VA examination in March 2011 during which the VA examiner noted that the Veteran's IHD impacts his ability to work. The examiner reported that the Veteran stated that he was not currently working, and that if he were to work, he would not be able to tolerate physical work due to fatigue and chest pressure but would be fine with sedentary work. See March 2011 VA examination. The Veteran underwent another VA examination in November 2015 during which the examiner noted that the Veteran's heart condition impacted his ability to work; he further noted that the Veteran's heart condition impacted his ability to work, due to dyspnea. See November 2015 VA examination. In April 2021, the Veteran was afforded a VA examination for his diabetes mellitus (DM). The examiner indicated that the Veteran was prescribed oral hypoglycemic agents as treatment. The Veteran does not need to regulate his activities due to his DM. The examiner indicated that the Veteran's DM would not impact his ability to work. In May 2021, the Veteran was afforded a VA examination for his heart condition. The examiner indicated that the Veteran had a diagnosis of coronary heart disease, ischemic heart disease, and aortic valve replacement. The examiner noted that continuous medication was required to control the Veteran's heart condition including Metoprolol, Amiodarone, Aspirin, and Plavix. The Veteran's MET testing revealed that the Veteran had fatigue but could participate in activities such as light yard work (weeding), mowing the lawn (power mower), and brisk walking. The examiner indicated that the Veteran's cardiac condition would interfere with occupational tasks that required exertions such as walking more than 50 steps without rest. The Board has considered the Veteran's, special training, and previous work experience. See 38 C.F.R. §§ 4.16. The Board finds that his previous work experience and training are not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as inspection work or security monitoring. The Veteran has held leadership roles that demonstrate that he would be able to learn new skills. The Veteran has also completed 2 years of college. The Veteran may not be able to do physically taxing work, but he would be able to work in an office setting doing administrative work, or other work that does not require the Veteran to walk long distances or lift heavy objects. The Board finds that the Veteran's work history would not prevent him from transitioning to an unskilled or semi-skilled occupation, which do not require special training, and can be learned on the job site. The Board also acknowledges that the Veteran's nonservice-connected conditions, to include his neck, back and hearing disabilities, may further limit him such that he cannot secure or follow a substantially gainful occupation. However, the nonservice-connected disabilities are not for consideration. In view of the above-described limitations, the Board finds that the Veteran is essentially limited to work that does not require him to stand for a significant amount of time or to overly exert himself physically. With such an occupational profile, the Veteran would be able to perform work such as inspection, and security monitoring, which do not involve exertional activities beyond the Veteran's residual functional capacity in view of his service-connected heart, diabetes and scar disabilities. As such, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, at any time during the appeal period (outside of the convalescence period). Thus, a TDIU is not warranted on a schedular basis. Additionally, prior to June 1, 2001, a referral is not warranted for the consideration of entitlement to a TDIU on an extraschedular basis. The preponderance of the evidence is against a finding of entitlement to a TDIU, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.