Citation Nr: 21068852 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 19-02 662 DATE: November 15, 2021 ORDER Entitlement to a total disability rating based upon unemployability (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 60 percent for ischemic heart disease is remanded. FINDING OF FACT The Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. 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, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a TDIU The Veteran claims he is entitled to a TDIU, asserting his service-connected disabilities make him unemployable. 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. See 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes that the Veteran meets the statutory criteria for a TDIU for the entire period on appeal. The Veteran's service-connected disabilities included: ischemic heart disease (coronary artery disease) rated as 60 percent disabling from November 28, 2011; ringing in the ears rated as 10 percent disabling from September 21, 2015; and bilateral hearing loss rated as noncompensable. The Veteran competed a VA form 21-8940 in March 2014. The Veteran indicated that he last worked full-time in 2001. The Veteran reported last working as a mill wright in 2001. Additionally, the Veteran reported that he did not complete high school and has not completed a GED. The Veteran stated that he had to quit working due to his heart condition. The Veteran submitted another VA form 21-8940 in April 2017. The Veteran reported that he last worked full-time in January 2004. The Veteran further reported previously working as a millwright foreman. The Veteran indicated that he did not complete high school. The Veteran stated that his ischemic heart disease has progressed to the point that he can no longer sustain gainful employment. The Veteran further stated that no employer will hire him for the kind of work he has done all of this life due to his heart condition, noting that he is an insurance liability. The Veteran had an examination for his ischemic heart disease in May 2015. The examiner stated that the Veteran's heart condition did not impact his ability to work. The examiner noted that the Veteran was medically retired as a mill wright. Additionally, the examiner noted that the Veteran remained independent in all activities of daily living, that he continues to drive his personal vehicle, and that he leaves home as he so desires. The examiner opined that the "Veteran could perform light physical activities if he so chooses". The Veteran had an examination for his hearing loss and tinnitus in October 2015. The examiner noted that the Veteran's tinnitus affected his ability to work. The examiner noted that the Veteran stated that he cannot concentrate and that he cannot sleep due to his tinnitus. The Veteran had another examination for his ischemic heart disease in May 2017. The examiner indicated that the Veteran's heart disability impacted his ability to work. The examiner noted that the Veteran was very short of breath and fatigued during the examination and that he required frequent rest periods. Additionally, the examiner noted that the Veteran was unable to stay awake. In an August 2017 medical opinion, the examiner opined that it was at least as likely as not that the Veteran was able to perform light work during a normal eight-hour workday, including exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. The Veteran submitted a private vocational assessment in October 2020. The Veteran reported that he left high school in the ninth grade and did not obtain a GED or high school diploma prior to entering service in November 1963 and that he has not obtained one since. The Veteran stated that following discharge from service, he worked as a construction worker and on a shrimp boat. The Veteran further reported that he worked in the fishing industry for approximately 15 years before becoming a mill wright apprentice. He stated that he eventually worked his way up to mill wright foreman until he was forced to leave his job due to inability to perform the physical demands of his occupation. The examiner noted that the Veteran experiences severe functional limitations resultant of his heart condition, noting that he has to take medications on a daily basis and that he becomes short of breath with activities, becoming easily tired with almost any type of prolonged activity. The examiner stated that the Veteran has "very limited formalized education and any vocational skills that he may have performed over the years of his work history are those that he learned on the job were specific to the work that he was performing, and therefore, he lacks transferrable skills to alternate occupations within the general labor and consequently he would be limited to unskilled work within the general labor market". The examiner opined that it is at least as likely as not that the Veteran has not been able to secure or maintain any substantially gainful occupation, even an unskilled occupation, within the general labor market since at least May 2017. Given the totality of the record, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities render him unemployable. The Veteran's service-connected ischemic heart disease renders him unable to do physical labor for extended periods of time and limit his mobility. Furthermore, based on the Veteran's limited education and work history, the Veteran likely lacks sufficient transferrable skills to secure and maintain employment in a more sedentary setting. Accordingly, the Veteran's service-connected disabilities render him unable to successfully secure and maintain substantially gainful employment. In short, the Board finds that the Veteran's disabilities render him unemployable. Because the Veteran is unemployable due to his service-connected disabilities, he is entitled to a TDIU. Thus, the claim is granted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent for ischemic heart disease is remanded. The Veteran contends that his current service-connected ischemic heart disease warrants an increased rating. The Veteran most recently underwent an examination related to his service-connected ischemic heart disease in May 2017. Since the May 2017 examination, the Veteran was hospitalized for unstable angina in March 2019 and for shortness of breath in June 2021. Since the May 2017 examination findings appear to not be representative of the current severity of the disability on appeal, the claim must be remanded as a new VA examination is warranted. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Schedule the Veteran for appropriate VA examination for his heart disability. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner should determine the nature and severity of the Veteran's ischemic heart disease. A METs test should be provided to the Veteran to determine his current METs. If a test cannot be accomplished, an explanation as to why should be provided. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.