Citation Nr: 21065754 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-32 324 DATE: October 27, 2021 ORDER Entitlement to total disability due to individual unemployability is granted effective September 24, 2015. The appeal of the issue of entitlement to a rating greater than 60 percent for coronary artery disease is dismissed. The appeal of the issue of entitlement to a rating greater than 20 percent for type II diabetes mellitus is dismissed. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, the evidence of record shows that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from September 24, 2015. 2. In correspondence received in September 2021, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that the Veteran wished to withdraw his appeal with respect to the issue of a rating greater than 60 percent for coronary artery disease. 3. In correspondence received in September 2021, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that the Veteran wished to withdraw his appeal with respect to the issue of a rating greater than 20 percent for type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met from September 24, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a rating greater than 60 percent for coronary artery disease. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). 3. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a rating greater than 20 percent for type II diabetes mellitus. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1965 to August 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from the February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied a rating greater than 60 percent for coronary artery disease, a rating greater than 20 percent for type II diabetes mellitus, and entitlement to individual unemployability. In June 2019, the Board denied entitlement to total disability due to individual unemployability (TDIU). The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) and through an August 2020 Joint Motion for Remand (JMR), the claim was remanded for the Board to provide adequate reasons and bases for its findings. Specifically, the parties to the JMR noted that the Board failed to provide an adequate statement of reasons or bases regarding relevant evidence in its adjudication of the TDIU issue, specifically the Veteran's service-connected posttraumatic stress disorder (PTSD) symptoms. The Court also directed the Board to address the November 2016 Appeal Certification and the Veteran's arguments presented in his November 2016 brief that the coronary artery disease (CAD) and type II diabetes mellitus ("diabetes") claims were in appellate status. In October 2019, the Veteran was afforded VA examinations for his service-connected CAD and diabetes. In November 2019, the Veteran was assigned a 100 percent rating for his service-connected CAD, effective August 7, 2019. The Veteran was also granted entitlement to special monthly compensation (SMC) based on housebound criteria being met from August 7, 2019. As such, entitlement to a TDIU is rendered moot from August 7, 2019. See 38 U.S.C. § 7105; see Green v. West, 11 Vet. App. 472, 276 (1998). The Board also notes that, a grant of a 100 percent rating for CAD constitutes a complete grant of the benefit sought on appeal for the claim of entitlement to a rating greater than 60 percent for CAD. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). In order to better address the Court's directions, however, the Board will find the claim withdrawn as discussed below rather than finding it not on appeal. In September 2021, the Veteran withdrew his claims of entitlement to an increased rating for CAD and diabetes. Thus, the only remaining claim on appeal is entitlement to a TDIU prior to August 7, 2019. In addition, although the Veteran only waived initial review of evidence submitted on September 22, 2021 and not all evidence previously not reviewed by the Agency of Original Jurisdiction (AOJ), in light of the grant of entitlement to a TDIU effective September 24, 2015, or prior to the submission of any new evidence, the Board finds that the distinction to be immaterial and not prejudicial to the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Entitlement to a TDIU prior to August 7, 2019 The Veteran contends that he is entitled to a TDIU from March 7, 2013. The Veteran's VA Form 21-8940 was received on September 9, 2013. Specifically, the Veteran contends that he has not earned gainful income since 2000, that his PTSD affects his capacity for sedentary employment or any kind of employment due to his documented history of violence in the workplace or active symptoms of psychosis, that his CAD renders him unable to exert himself or be in stressful environments as it aggravates his ischemic heart disease, and that his peripheral neuropathy limits his ability to perform activities involving strength or fine motor skills using his hands. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, 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(a), 4.16(a). In this case, the Board notes that the Veteran's service-connected disabilities prior to August 7, 2019 include: coronary artery disease, rated as 60 percent disabling; posttraumatic stress disorder (PTSD), rated as 30 percent disabling; type II diabetes, rated as 20 percent disabling; peripheral neuropathy, left upper extremity, rated as 20 percent disabling under DC 8513; peripheral neuropathy, right upper extremity, rated as 20 percent disabling under DC 8513; peripheral neuropathy, left lower extremity, rated as 10 percent disabling; and peripheral neuropathy, right lower extremity, rated as 10 percent disabling. The Veteran's combined disability rating is 90 percent since June 2011. As such, the Veteran meets the schedular requirements for TDIU for the entire period on appeal, which is from March 7, 2013 to August 7, 2019. Regardless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In September 2007, the Veteran was afforded a VA examination for his PTSD. The Veteran reported that he worked for a single construction company, TOJ, for "27 years" and that he "finally had to give up his work because of heart disease and orthopedic problems." The Veteran also denied ever having any functional problems related to Vietnam if he kept himself active. He also cited anxiety as the reason he was forced to quit work. The Veteran also denied having any anger control problems. In April 2009, the Veteran was afforded another VA examination for his PTSD. This time, the Veteran reported that he retired from road maintenance in 1999 after he "wore out" and that he was on Social Security disability because of his "physical" problems. The Veteran also reported that he worked for TOJ construction company for "more than 30 years." He indicated suicidal as well as homicidal ideations and that he was upset because he had a grandson in Afghanistan. The Veteran reported that "never really missed work because of any mental problems through the years" and that he did road construction work for more than 30 years. On one occasion, the Veteran stated that he struck an inspector on the job and that he was "fired on occasion for being hot-headed." The Veteran did not state whether he was fired from TOJ construction company or whether he was fired from another employer nor did the Veteran state when he was fired. The Veteran later stated that he was fired "on one occasion." He also reported that he had never been arrested. The examiner noted that the Veteran indicated "anger control problems." On March 7, 2013, the Veteran submitted a VA Form 21-526b seeking "individual unemployability due to [service-connected] conditions of heart disease/ortho conditions." On September 9, 2013, the Veteran's VA Form 21-8940 was received. The Veteran wrote that his employer was BE from 1996 to 2000. The Veteran attached a recommendation from a private medical practitioner who stated that "due to his multiple [orthopedic] problems, i.e., cervical spondylosis, bilateral carpal tunnel syndrome, and chronic lower back pain adding to his other medical problems especially related to his heart" the Veteran should seek medical retirement. The Veteran was not service-connected for any of the orthopedic problems. Additional private medical records show that the Veteran injured his back in May 1989 while working as a diesel mechanic. In December 2013, the Veteran stated that BE was no longer in business and that he last worked for them in October 2000. The Veteran's Social Security Administration records were also associated with his file in December 2013. The primary diagnosis was degenerative disc disease and degenerative joint disease of both shoulders and wrists and the secondary diagnosis was CAD. In the file, the Veteran reported that his symptoms were neck pain, back pain, shoulder pain, wrist and hand pain, knee pain, leg pain, foot pain, and joint pain. The Veteran also reported that he had three heart surgeries since October 1999. For employment history, the Veteran stated that he worked as a diesel/heavy equipment mechanic for TLJ road construction from 1975 to 1987, as a diesel/heavy equipment mechanic for AC Tractor Company from 1987 to 1989, as an asphalt foreman/operator for TLJ road construction from 1990 to 1996, and as an asphalt foreman/operator for BE road construction from 1996 to 2000. While at TLJ from 1990 to 1996, the Veteran stated that he was "promoted to road foreman" after a year of work as a heavy equipment operator. For the last job, the Veteran reported that he was a supervisor and that the heaviest weight he lifted in this position was less than 10 pounds. Although the Veteran listed four different jobs from 1975 to 2000, the Veteran did not report that he was fired from any position and that he only missed 8 months between these jobs due to his back surgery. The Veteran listed his severe muscle and skeletal pain and heart surgeries as reasons that limited his ability to work and that the pain caused him to work less hours per day. He also reported that he could not be a mechanic and had to change employer. This statement contradicts his earlier statement where he stated that he was "promoted to road foreman" after a year of work as a heavy equipment operator while with TLJ, indicating that he worked 5 years without having to change his employer. In the residual physical functional capacity assessment performed in January 2001, the examiner opined that the Veteran's CAD did not impact his functioning. A February 2014 VA examination reported that the Veteran's heart condition impacted his ability to work, but that his chest pain was relieved with nitroglycerin tablets and rest. The examination also noted that, while the Veteran's neuropathy impacted his ability to work, that he stopped working only after his last back surgery and did not list any other reason. The examiner noted that the Veteran reported that his main activity limiting problems stem from multiple orthopedic problems and sequelae. The examiner concluded that the Veteran had no serious diabetic complications, that his shortness of breath was more likely due to his non-service-connected chronic lung disease, and that his lumbar spine disease and his age were the most limiting factors for any moderately strenuous work. On September 24, 2015, the Veteran complained of dizziness and falls. Imaging studies showed evidence of moderate small vessel ischemic disease that the practitioner attributed to the Veteran's age in December 2015. Other possible etiologies, although less likely, were changes related to migraine headaches, prior infection, or vasculitis. The Board notes that CAD and ischemic heart disease (IHD) refer to the same heart condition. See U.S. Department of Veterans Affairs, Public Health, Ischemic Heart Disease and Agent Orange: https://www.publichealth.va.gov/exposures/agentorange/conditions/ischemicheartdisease.asp (last accessed November 23, 2020)("Ischemic heart disease is also known as coronary artery disease or 'hardening of the arteries'"); Centers for Disease Control and Prevention, Coronary Artery Disease: https://www.cdc.gov/heartdisease/coronary_ad.htm (last accessed November 13, 2020)("[CAD] is sometimes called coronary heart disease or ischemic heart disease"); National Heart, Lung, and Blood Institute, Coronary Heart Disease: https://www.nhlbi.nih.gov/health-topics/coronary-heart-disease (last accessed November 23, 2020) (explaining coronary heart disease is an umbrella term that is also known as coronary artery disease and ischemic heart disease, among other names). In October 2015, the Veteran reported that he worked as a heavy equipment mechanic for 27 years, welding intermittently, and did asphalt work for 7 years. In November 2015, the Veteran submitted a medical opinion stating that the Veteran was unable to be gainfully employed. The practitioner cited "service connected condition of sciatica," for which the Veteran is not service-connected, as a reason for the Veteran's inability to perform sedentary work, and stated that PTSD affected the Veteran's ability to perform activities of daily living "limiting" his ability to maintain gainful employment. In January 2016, the Veteran submitted a VA Form 9 and contended that his CAD was worsening as he had another "heart cath with 2 stents placed and angioplasty." The Veteran also reported that his diabetes was worse and that his doctor added medication. Medical treatment records from March 2016 state that the Veteran's CAD was "advanced." In September 2016, the AOJ issued a Supplemental Statement of the Case (SSOC) continuing a 60 percent rating for the Veteran's CAD, a 20 percent rating for diabetes, and denying TDIU. In June 2019, the Board denied the Veteran's claim of entitlement to TDIU. The Board cited the February 2014 VA examination where the examiner attributed the Veteran's main limitations to disabilities that were not connected to his service and age. The Board found that the Veteran's service-connected disabilities, on their own did not physically limit the Veteran from obtaining and maintaining gainful employment and that the Veteran's current unemployability was due to his physical disabilities that were not connected to his active service. On August 7, 2019, the VA received a VA Form 20-0995 from the Veteran contending that his CAD worsened. Specifically, the Veteran contended that he had another heart catherization on January 8, 2016 and that he had four strokes in September 2015. The January 2016 medical practitioner stated that the Veteran "came to the office with disabling angina symptoms and history of coronary artery angioplasty and stenting about 12 years prior." The Veteran also stated that his service-connected disabilities worsened since his last VA examination on January 15, 2014 for his diabetes. Regarding his claim for a TDIU, the Veteran reported that he had to retire when he started having heart problems. In October 2019, a VA examiner opined that the Veteran could not perform strenuous nor sedentary activities due to his limitations and that he becomes dizzy and falls with activity. The examiner attributed these limitations to diabetes as low blood sugar caused dizziness and falls, but also implied that CAD contributed to these limitations. The VA examiner noted that the Veteran had stents placed on October 21, 1999, February 16, 2000, August 29, 2000, January 8, 2016, and April 13, 2019. VA Medical Center treatment records between August 29, 2000 and October 2019 do not show any other surgeries or significant treatment for CAD. In November 2019, the AOJ assigned a 100 percent rating and entitlement to special monthly compensation based on housebound criteria being met. The Veteran submitted a report from a private vocational consultant dated September 8, 2021. The consultant did not examine the Veteran or administer any testing but noted an interview with the Veteran (likely by electronic means), a review of records citing STRs, post-service medical records and examinations, employment history, and lay statements including those made during the interview. The consultant concluded that the Veteran's chest pain on exertion and stressful environments prevents past work as a diesel mechanic and paving foreman. The consultant noted that the Veteran's capacity for sedentary employment was limited by an inability to work in a stressful environment and poor manual dexterity would impair writing and typing. The consultant further concluded that violent co-worker conflicts and occasional hallucinations would be unacceptable in a workplace. As an initial matter, the Board finds that the Veteran's PTSD symptoms did not affect his ability to obtain and maintain gainful employment. The Veteran consistently reported that he worked until October 2000 with only 8 months of unemployment due to his back surgery. Although he reported being fired at one occasion for striking his supervisor, there is no evidence that directly or indirectly supports that this incident, even if true, affected his ability to obtain and maintain gainful employment. As discussed in detail above, the Veteran worked at TLJ construction from 1975 to 1987, and again from 1990 to 1996. Had he been fired from TLJ construction in 1987 due to striking a supervisor, it did not prevent him from obtaining and maintaining gainful employment at AC Tractor company in 1987 or BE road construction in 1996. Similarly, had he been fired from AC Tractor company in 1989, it did not prevent him from obtaining and maintaining gainful employment at TLJ construction in 1990. It is also unlikely that the Veteran was fired from BE road construction in 2000 due to striking his supervisor as the Veteran consistently stated that he retired due to his physical limitations, both contemporaneously and decades after retirement. There is also no documented evidence of violence in the Veteran's record outside of his statement to the April 2009 VA examiner. The Veteran also consistently reported that he never missed work due to mental problems and that he has worked for 27 to 34 years since his discharge in August 1967, retiring in October 2000. Thus, the Board finds that while the Veteran was diagnosed as having PTSD and suffered symptoms meeting the criteria for a 30 percent rating, that the Veteran's PTSD and its symptoms did not affect the Veteran's ability to obtain and maintain gainful employment. The remaining question at issue is whether the Veteran was entitled to a TDIU prior to August 7, 2019 based solely on his physical service-connected disabilities. After reviewing the evidence of record, and resolving doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities objectively worsened on September 24, 2015 to such degree that he became unable to obtain and maintain gainful employment. The Board finds that prior to September 24, 2015, there is no evidence that supports a finding that the Veteran was entitled to a TDIU based solely on his physical service-connected disabilities as discussed in detail above. On September 24, 2015, however, the Veteran complained of dizziness and falls, with the medical practitioner finding evidence of moderate small vessel ischemic disease and later opining that these were most compatible with moderate chronic microvascular ischemic changes in patients of the Veteran's age in December 2015. The medical practitioner also stated that other etiologies were less likely. Although the Veteran did not contend that his dizziness and falls rendered him unable to obtain and maintain gainful employment at the time, the Veteran later argued that they did. In October 2019, the Veteran's contentions were supported by the October 2019 VA examiner who opined that the Veteran was unable to perform strenuous or sedentary activities due to his service-connected disabilities, and that the symptoms of dizziness and falls were due to his CAD and diabetes. Although the October 2019 VA examiner seemed to have placed greater probable weight on the Veteran's diabetes and resulting low blood sugar as the cause rather than CAD as indicated by the imaging studies performed in September and December of 2015, the Board resolves doubt in favor of the Veteran and interprets the October 2019 VA examiner's opinion as attributing dizziness and falls to CAD as well, and therefore IHD just as the September 2015 medical practitioner. In summary, the Board finds that the Veteran experienced dizziness and falls due to his service-connected CAD as early as on September 24, 2015, that these symptoms prevented the Veteran from performing strenuous or sedentary activities as contended by the Veteran, and that the contention is supported by the October 2019 VA examiner. For the foregoing reasons, the evidence is at least in equipoise that the criteria for a total disability evaluation based upon individual unemployability due to service-connected disabilities were met, and resolving doubt in favor of the Veteran, the Veteran's claim for TDIU is granted effective September 24, 2015. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.