Citation Nr: 21067900 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 14-33 182 DATE: November 8, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 27, 2019, is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Navy from July 1968 to October 1969. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2017 Board hearing. A transcript of that hearing has been prepared and is associated with the evidence of record. This matter was previously remanded on multiple occasions, to include most recently, in July 2021. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 27, 2019 is remanded. Although regrettable, additional remand is required for full compliance with the Board's previous remand instructions and for an adequate opinion. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran contends that he is entitled to an award of TDIU benefits prior to September 27, 2019. Review of the record indicates that the Veteran has been granted service connection for the following conditions: coronary artery disease (CAD) evaluated as 30 percent disabling from March 21, 2012 and 100 percent disabling from September 27, 2019 forward, posttraumatic stress disorder (PTSD) evaluated as 50 percent disabling from August 4, 2010, bilateral hearing loss evaluated as 10 percent disabling from August 4, 2010, and tinnitus evaluated as 10 percent disabling from August 4, 2010. Considering the above, the combined disability evaluations of the Veteran's service-connected disabilities was 60 percent disabling from August 4, 2010, 70 percent disabling from March 21, 2012, and 100 percent disabling from September 27, 2019. Pursuant to a November 2020 Board Decision, the claim of entitlement to an a TDIU as of September 27, 2019 was recharacterized as a claim for a TDIU, prior to September 27, 2019. It was also remanded for referral to the Director of Compensation Service (DCS) for extraschedular consideration. Pursuant to a March 2021 advisory opinion, the DCS concluded that the evidence did not support a finding that the combined impact of the Veteran's service-connected disabilities impaired his ability to secure or maintain substantially gainful employment for the period between August 4, 2010 and March 21, 2012, to include an extraschedular basis. In support of the stated conclusion, the DCS considered the occupational impact of his service-connected PTSD, hearing loss, and tinnitus. Review of the medical evidence confirms that the Veteran's mental health symptoms have been described as mild to moderate in severity, to include as due to anger, depression, irritability, sleep impairment and nightmares. Prior to March 2012, there is no evidence that the Veteran's PTSD, bilateral hearing loss or tinnitus resulted in such a significant social and occupational impairment that he was unable to secure or maintain substantially gainful employment. Despite the above, a July 2021 Board decision deferred further consideration of the Veteran's claim for a TDIU, prior to September 27, 2019, pending assignment of a disability rating for the newly service-connected alcohol use disorder as secondary to service-connected PTSD. One month later, a Decision Review Officer decision, dated August 2021, indicated that the alcohol use disorder was included in the Veteran's service-connected PTSD and reevaluated both conditions as PTSD with alcohol use disorder. A temporary evaluation of 100 percent disabling was assigned effective October 12, 2010 based upon a period of hospitalization in excess of 21 days. An evaluation of 50 percent disabling was assigned from December 1, 2010 forward. Thereafter, the RO issued a Supplemental Statement of the Case (SSOC), which indicated that the medical evidence did not support the grant of a TDIU prior to September 27, 2019. In September 2021, the Veteran's counsel submitted a response to the August 2021 SSOC. Therein, it was asserted that the RO committed reversible error by failing to fully consider a favorable social security administration (SSA) determination that the Veteran became totally disabled as of September 14, 2005 due to his service-connected CAD. The finding noted that the Veteran was deemed unable to perform, maintain, or obtain greater than marginal employment due to his service-connected conditions since October 31, 2004. As the record confirms that the Veteran was granted service connection for CAD effective October 31, 2004, Counsel suggests that VA is obligated to determine whether this lay evidence is credible. It was further suggested that under the benefit of the doubt doctrine, VA improperly relief on its own unsubstantiated medical opinion in violation of Colvin v. Derwinski, 1 Vet. App. 171 (1991). Similarly, counsel contends that the RO failed to cite to medical research, literature, or an etiological opinion in support of its finding that the Veteran was not entitled to a TDIU prior to September 27, 2019. It was further suggested that VA failed to consider whether the Veteran was capable of performing greater than marginal employment as required under 38 C.F.R. § 4.16(a). Marginal employment is not akin to substantially gainful employment. Accordingly, when evaluating a claim for individual unemployability, VA is required to consider whether the Veteran was capable of only marginal employment, even if the Veteran is unemployed at the time of initial application. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Counsel contends that failure to consider marginal employment constitutes reversible error. Similarly, counsel asserted that VA failed to discuss or provide a VA medical opinion regarding the cumulative effect of the Veteran's service-connected PTSD, coronary artery disease, tinnitus, and hearing loss on his ability to perform, maintain, or obtain greater than marginal employment prior to September 27, 2019. As it is generally presumed that a Veteran is seeking the maximum benefit allowed by law, VA is obligated to "render a decision which grants every benefit that can be supported by law." See AB v. Brown, Vet. App. 35, 38 (1993); 38 C.F.R. § 3.103(a). On review of the record, to include the arguments noted above, the Board concedes that further development is required. In so finding, the Board notes that the Veteran was last afforded a VA examination regarding his service-connected CAD in April 2014. At that time, the examiner opined that the Veteran would be unable to engage in moderate or strenuous physical type work; with no heart-related limitations as to sedentary or light-type physical work. More recently, the medical evidence suggests that the Veteran continues to suffer from periodic bouts with chest pain, to include at rest. His prior medical history documented placement of a stent in 2004; followed by a left anterior descending artery (LAD) procedure in 2013. In December 2020, a cardiac catherization revealed recurrent stent restenosis. Pain was described as sharp, and moderate to severe in intensity. Reportedly, the Veteran was last evaluated in the cardiac clinic in 2013. An echocardiography report, dated October 2013, revealed concentric left ventricular hypertrophy, a Grade I diastolic dysfunction, mild mitral regurgitation, mild tricuspid regurgitation, and mild pulmonic regurgitation. Prescribed medications have included Pravastatin, Nitroglycerin, and Lipitor. In light of the above, the Board finds that an updated VA medical opinion is required. In particular, the opinion should address whether the Veteran is capable of greater than marginal employment. As consideration has not been given to the question asserted above, an error has occurred. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected CAD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. In particular, the examiner is requested to offer an opinion on the functional limitations associated with the Veteran's service-connected CAD, throughout the appeal period. The opinion provided should specifically address the question of whether the Veteran was capable of performing greater than marginal employment due to his service-connected CAD for the period prior to September 27, 2019. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran's lay statements. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Thereafter, re-adjudicate the Appellant's claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.