Citation Nr: 21066074 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-00 747 DATE: October 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The schedular criteria for award of a TDIU are met, and the Veteran was precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision. The Board denied the claim in a June 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court vacated and remanded the June 2019 Board decision for readjudication consistent with the parties' Joint Motion for Remand. Entitlement to a TDIU The Veteran contends that his service-connected disabilities, in particular his ischemic heart disease, prevent him from securing or following substantially gainful employment. See September 2011 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. For the reasons that follow, the Board finds that an award of TDIU is warranted. The claim is granted. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is currently service connected for ischemic heart disease at a 60 percent disability rating, effective August 21, 2010; diabetes mellitus, type II, at a 10 percent disability rating, effective November 30, 2011, and 20 percent, effective September 26, 2012; tinnitus at a 10 percent disability rating, effective February 21, 2014; and bilateral hearing loss at a noncompensable disability rating, effective February 21, 2014. The record demonstrates that the Veteran has met the schedular requirements for TDIU prior to November 30, 2011, when his only service-connected disability, ischemic heart disease, was rated as 60 percent disabling, and since September 26, 2012, when the combined evaluation for his service-connected disabilities was 70 percent. On his September 2011 VA Form 21-8940, the Veteran reported completing two years of college, and last working full-time in May 2011. He has reported working for approximately seven years as a driver from April 2004 to June 2011. Prior to that he worked for about five years as a machine operator and more than 30 years as a supervisor for a food processing company. See August 2021 report from a private vocational rehabilitation counselor. The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Records from the Social Security Administration (SSA) include the Veteran's reports of his work duties from October 1967 to January 1998 as the supervisor of the food processing plant. His activities included working on the floor, placing food on hoppers or a conveyor belt, operating various food processing and packaging machines, and working in a station that was missing a person for the shift. The Veteran reported that he frequently lifted 25 pounds of weight as part of his work duties and as much as 50 pounds. As a machine operator from 1998 to 2003, the Veteran reported operating machinery used in the production of pallets, which are the horizontal platforms used as the base for shipping commercial goods. He also reported working as a custodian from November 2003 to August 2004. SSA records show that the Veteran has been in receipt of disability benefits effective from May 12, 2011, for a primary diagnosis of ischemic heart disease for which he is in receipt of service connection and a secondary diagnosis of peripheral arterial disease. In a November 2011 VA heart conditions examination, the examiner found that the Veteran's heart condition impacted his ability to work. The examiner opined that the Veteran is "capable of sedentary to light physical duty employment based on his [service-connected] medical conditions alone, if he so chooses." The examiner noted the Veteran's reports of "shortness of breath and fatigue when walking more than 30 minutes." VA examination reports dated in December 2011 and September 2016 noted findings from the respective examiners that the Veteran's Type II diabetes mellitus did not impact his ability to work. In a March 2018 VA hearing loss and tinnitus examination, the examiner determined that the Veteran's tinnitus impacted ordinary conditions of daily life, including the ability to work. In a separate examination report evaluating diabetes, the examiner concluded that the condition did not impact the Veteran's ability to work. In a March 2018 VA heart conditions examination, the Veteran's functional status was estimated at between 3 and 5 METs based on an interview-based testing. The functional level was found to be consistent with activities such as light yard work, mowing the lawn with a power mower or brisk walking. The March 2018 VA examiner also provided an opinion on whether the Veteran was capable of obtaining or maintaining a substantially gainful occupation due to his service-connected disabilities. However, the Board notes that the question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In the August 2021 vocational assessment report, the private rehabilitation counselor reviewed the medical records and concluded that the Veteran can occasionally lift or carry 10 pounds and frequently lift or carry less than 10 pounds. He could stand or walk for a total of two hours, and he could sit for a total of six hours in an eight-hour workday. The Veteran had postural limitations in that he could occasionally climb ramps and stairs, and he could never climb ladders, ropes or scaffolds. The rehabilitation counselor stated that these limitations were due to a combination of chest and leg pain. Further, the Veteran's past employment history required a significant level of physical labor, and his dyspnea and fatigue symptoms would not allow him to meet the fundamental requirements of his past jobs. Additionally, the Veteran's fatigue symptoms would make operating heavy machinery and driving dangerous. The rehabilitation counselor noted that records have documented that the Veteran's heart condition has impacted his ability to work due to shortness of breath, easy fatigue and chest pains, and this shortness of breath occurs with minimal physical exertion. This functional limitation, the rehabilitation counselor concluded, would preclude the Veteran from participating in light duty work. The private vocational rehabilitation counselor disputed statements in the Veteran's medical record indicating that he would be able to work in a sedentary position, stating that such work was inconsistent with the Veteran's educational background and work history, which was exclusively in physical labor occupations. In view of the totality of the evidence, the Board finds that it is at least as likely as not that the Veteran's service-connected disabilities, including the ischemic heart disease., render him unemployable. His educational and occupational history reflects that he has completed two years of college, and he has no other education or training before becoming too disabled to work. Further, the Veteran's entire working career appears to have been devoted to work in activities that required some level of physical labor. Even though the Veteran worked for 30 years in a supervisory position at a food processor plant, the job responsibilities as detailed in the record shows that he frequently would be tasked with lifting heavy objects up to 50 pounds, operating machinery, and filling in shifts for employees who became unavailable. The Veteran's past educational and work experience fails to show any appreciable job skills that would be purely sedentary in nature. The Board finds the Veteran's statements that his service-connected ischemic heart disease impairs his ability to perform his job to be credible. And the Board finds the August 2021 private vocational assessment to be particularly probative as it detailed the Veteran's occupational history and functional limitations based on a thorough review of the record, as well as an interview with the Veteran. The above discussion reflects that the evidence is at least evenly balanced as to whether the Veteran's service-connected ischemic heart disease loss precludes him from obtaining or maintaining substantially gainful employment. Based on the foregoing and affording all benefit of the doubt to the Veteran, the Board finds the criteria for TDIU have been met and the appeal is granted. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.