Citation Nr: 21069475 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-14 844A DATE: November 18, 2021 ORDER Entitlement to an initial disability rating of 60 percent, but no higher, for coronary artery disease (CAD) from August 31, 2010 to December 8, 2011 is granted, subject to controlling regulations governing the payment of monetary awards. Reduction of the disability rating for CAD from 60 percent to 30 percent from January 1, 2015 to October 1, 2020 was not proper. Entitlement to a disability rating higher than 60 percent for CAD for the entire appeal period is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 19, 2010 to February 5, 2013 is moot. Entitlement to a TDIU from February 5, 2013 to June 27, 2014 is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from August 31, 2010 to November 19, 2010 is remanded. FINDINGS OF FACT 1. From August 31, 2010 to December 8, 2011, the evidence is approximately evenly balanced as to whether the symptoms of the Veteran's CAD more nearly approximated more than one episode of acute congestive heart failure (CHF) in the past year, or workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 2. The reduction in the disability rating for CAD from 60 percent to 30 percent from January 1, 2015 to October 1, 2020 was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. 3. For the entire appeal period, the Veteran's CAD symptoms did not more nearly approximate chronic CHF, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. 4. From November 19, 2010 to February 5, 2013, the Veteran is in receipt of a 100 percent disability rating for service-connected glomerulonephritis and residuals and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1). 5. From February 5, 2013 to June 27, 2014, the Veteran's service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience otherwise qualified him. CONCLUSIONS OF LAW 1. From August 31, 2010 to December 8, 2011, the criteria for an initial disability rating of 60 percent, but no higher, for CAD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. The reduction in the disability rating for CAD from 60 percent to 30 percent from January 1, 2015 to October 1, 2020 was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344. 3. For the entire appeal period, the criteria for a disability rating higher than 60 percent for CAD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7005. 4. The issue of entitlement to a TDIU is moot from November 19, 2010 to February 5, 2013. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 5. From February 5, 2013 to June 27, 2014, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to December 1968. The Veteran's DD Form 214 reflects that he is a recipient of the Combat Infantryman Badge. The Veteran submitted to the VA in April 2012, after an April 2012 rating decision granting service connection for CAD with disability ratings of 30 and 60 percent, a Statement in Support of Claim (VA Form 21-4138) requesting the VA accept the form as a Notice of Disagreement (NOD) if any of the issues presented in that statement were considered in a decision in the previous 12 months. As April 2012 falls before the date VA amended its regulations to require claims be filed on a standardized form, and VA construes notices of disagreement liberally, Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement"), the April 2012 VA Form 21-4138 was a timely NOD, thus making the April 2012 rating decision an additional decision that must be addressed on appeal. Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). These matters initially came before the Board of Veterans' Appeals (Board) on appeal from April 2012 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The April 2012 rating decision granted the claim of service connection for CAD, with a 30 percent evaluation from August 31, 2010, and a 60 percent evaluation from December 8, 2011. The October 2014 rating decision decreased the evaluation for the Veteran's CAD from 60 percent to 30 percent, effective January 1, 2015. The Veteran timely appealed these matters. In April 2018, the Board remanded the matters for further development, to include obtaining a VA examination for the Veteran's service-connected CAD and obtaining outstanding medical treatment records and service treatment and personnel records. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's April 2018 remand instructions by sending the Veteran a VA Form 21-4142, obtaining outstanding service treatment and personnel records, and as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim for a higher disability rating for CAD. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In a May 2021 rating decision, the RO increased the evaluation for service-connected CAD to 60 percent, effective October 1, 2020, thereby creating staged ratings. As the Veteran has not indicated satisfaction with this disability rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The issue of entitlement to a TDIU has been raised as part and parcel of the claim for a higher initial disability rating for CAD and will be discussed further below. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Higher disability rating for CAD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Disability rating for CAD The Veteran is currently in receipt of a 30 percent disability rating for CAD from August 31, 2010 to December 8, 2011, a 60 percent disability rating from December 8, 2011 to January 1, 2015, 30 percent disability rating from January 1, 2015 to October 1, 2020, and a 60 percent disability rating from October 1, 2020. The Veteran's CAD is currently evaluated under DC 7005. 38 C.F.R. § 4.104. As shown below, the evidence of record warrants a 60 percent disability rating from August 31, 2010 to December 8, 2011, but no higher, and does not warrant a disability rating higher than 60 percent throughout the entire appeal period. The issue of whether the reduction from 60 percent to 30 percent from January 1, 2015 to October 1, 2020 was proper will be discussed in another section of this decision. VA recently amended the Schedule for Rating Disabilities of the Cardiovascular System, to include DC 7005. See Schedule for Rating Disabilities: The Cardiovascular System, 86 Fed. Reg. 54093 (Sept. 30, 2021). The change was effective November 14, 2021. Id. at 54098. Where, as here, a regulation is amended during the pendency of a claim, the version more favorable to the Veteran will be applied, except that the amended version will not be applied retroactively unless there is an explicit indication that the amended version was intended to be so applied. Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). In this case, the pre-amended version is more favorable and will be applied. Pre-amended DC 7005 provides a 10 percent rating when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, or syncope, or; continuous medication is required. A 30 percent rating is assigned when workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year, or; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or; when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent. Under Note (2) of 38 C.F.R. § 4.104, one MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and 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. A May 2011 Disability Benefits Questionnaire (DBQ) by a private physician noted the Veteran's diagnosis of coronary artery disease. The physician indicated that the Veteran did not have CHF. The Veteran's most recent diagnostic exercise test was in May 2011, where he was able to perform 7 METs and denied experiencing dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity. There was evidence of cardiac hypertrophy or dilatation, and an echocardiogram in November 2009 showed LVEF of 60-65 percent. A December 2011 Disability Benefits Questionnaire (DBQ) by a private physician noted the Veteran's diagnosis of coronary artery disease. The physician indicated that the Veteran did not have CHF. The Veteran's most recent diagnostic exercise test was in May 2011, where he was able to perform 3.60 METs. There was evidence of cardiac hypertrophy or dilatation, and an echocardiogram in November 2009 showed LVEF of 60-65 percent. The physician found that the Veteran's CAD impacted his ability to work in that he could not engage in physical labor. A February 2013 VA examination report noted that the Veteran did not have CHF. A diagnostic exercise test was not conducted, but based on an interview-based METs test, the Veteran experienced dyspnea during the lowest level of activity and greater than 5 to 7 METs. A September 2012 echocardiogram noted LVEF of 60 to 65 percent. The examiner found that the Veteran's CAD would not impact his ability to work. A September 2014 VA examination report noted that the Veteran did not have CHF, myocardial infarction, cardiac arrhythmia, a heart valve condition, an infectious cardiac condition, or pericardial adhesions. His heart rhythm and sounds were normal. Peripheral pulses were normal, and there was no peripheral edema. A September 2013 echocardiogram noted evidence of cardiac hypertrophy and LVEF of 60 to 65 percent. A June 2013 nuclear stress test found post-ejection fraction was 56 percent with exercise capacity significantly reduced. During an interview-based METs test, the Veteran reported experiencing dyspnea and fatigue during the lowest level of activity and greater than 5 to 7 METs. The examiner found that the Veteran's CAD would present functional impairment that would impact physical employment, although sedentary employment would not be impacted. A March 2021 VA examination report noted that the Veteran did not have CHF, myocardial infarction, cardiac arrhythmia, a heart valve condition, an infectious cardiac condition, or pericardial adhesions. A 2019 echocardiogram noted evidence of cardiac hypertrophy. During an interview-based METs test from October 2020, the Veteran reported experiencing fatigue during the lowest level of activity and greater than 3 to 5 METs. The examiner found that the Veteran's CAD did not impact his ability to work. For the following reasons, the Veteran's CAD warrants a rating of 60 percent, but no higher, from August 31, 2010 to December 8, 2011. The evidence of record reflects that the Veteran's heart disability more nearly approximated symptoms of a workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. Notably, an exercise stress test conducted in May 2011 indicated that the Veteran's METs was 3.60. Therefore, the evidence of record shows that the Veteran's CAD symptoms from August 31, 2010 to December 8, 2011 more nearly approximated the criteria for an initial disability rating of 60 percent. Moreover, there is a lack of evidence of record establishing that the Veteran's heart disability symptoms suddenly became worse in December 2011. In this regard, an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Considering the evidence of the exercise stress test conducted in May 2011 that indicated that the Veteran's METs was 3.60, it is at least as likely as not that the CAD symptoms more closely approximated a workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope from August 31, 2010 to December 8, 2011. The evidence of record does not reflect that the Veteran's CAD symptoms more nearly approximated chronic CHF, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent throughout the entirety of the appeal period. Thus, the criteria for a 100 percent disability rating have not been met for the entirety of the appeal period. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's CAD symptoms have more nearly approximated the criteria for a 60 percent initial disability rating from August 31, 2010 to December 8, 2011. Accordingly, entitlement to an initial disability rating of 60 percent for service-connected CAD from August 31, 2010 to December 8, 2011 is warranted. As the preponderance of the evidence is against a higher disability rating for any portion of the appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, other than TDIU, which will be discussed below, and no other issues have been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Reduction in disability rating for CAD In an October 2014 rating decision, the AOJ decreased the evaluation for CAD, evaluated at 60 percent disabling, to 30 percent, effective January 1, 2015. This reduction was based on the September 2014 examination interview-based METs test that the examiner found resulted in greater than 5 to 7 METs. A 60 percent disability rating was subsequently awarded on October 1, 2020. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the AOJ complied with the due process requirements of 38 C.F.R. § 3.105(e) by issuing an April 2013 decision and letter proposing the rating reduction for the Veteran's heart disability. The Veteran was then given the appropriate time within which to provide additional evidence. Thereafter, the AOJ promulgated the October 2014 rating decision, implementing the proposed reduction. Thus, as the notice and due process requirements of 38 C.F.R. § 3.105(e) have been met, no further discussion in this regard is necessary. The provisions of 38 C.F.R. § 3.344(a) and (b) prescribe additional requirements for rating reductions, but only apply to ratings that have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Specifically, the provisions of 38 C.F.R. § 3.344 (a) and (b) prescribe that although material improvement in a physical condition may be clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The 60 percent rating had not been in effect for more than five years as that rating was awarded on December 8, 2011, so the protective provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. As previously noted, the Veteran's 60 percent disability rating for CAD was awarded on December 8, 2011, and reduced to 30 percent in an October 2014 rating decision, effective January 1, 2015. This decision based the 30 percent evaluation on a September 2014 examination interview-based METs test that the examiner found resulted in greater than 5 to 7 METs. This METs level has been found to be consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn with a push mower, and heavy yard work such as digging. Certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993). In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Id. at 421. For the following reasons, the reduction in the disability rating for the Veteran's CAD was not proper. The October 2014 rating decision which reduced the disability rating for the Veteran's heart disability demonstrates that the AOJ appears to have essentially analyzed the issue of the reduction of the 60 percent disability rating in the same manner as it would analyze a claim for an increased disability rating. Specifically, the AOJ did not address whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Id. The evidence of record does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work at the time of the January 2015 reduction. Notably, during a June 2014 hearing before a DRO, the Veteran testified that he felt tired all the time and could not cut his grass because of his heart disability. He endorsed symptoms of dizziness and chest pain and testified that he stopped swimming and walking because he was tired all the time. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As the AOJ did not consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life, such an error warrants reinstatement, i.e., restoration, of the rating in effect prior to the reduction. Stern v. McDonough, 34 Vet. App. 51 (2021). For the foregoing reasons, the failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reduction from 60 percent to 30 percent void ab initio. Accordingly, the previously assigned 60 percent disability rating for the Veteran's CAD must be restored. Entitlement to a TDIU prior to June 27, 2014. The Veteran's attorney contends that the Veteran's CAD, renal failure, and PTSD do not allow the Veteran to maintain gainful employment. The Veteran is in receipt of a TDIU from June 27, 2014. Given that the issue of entitlement to a TDIU came to the Board as part and parcel of the claim for a higher initial disability rating for heart disability, the date of claim for entitlement to a TDIU begins August 31, 2010, the effective date of the grant of service connection for CAD. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal); Rice, 22 Vet. App. at 447. Thus, the Board must determine whether the Veteran is entitled to a TDIU from August 31, 2010 to June 27, 2014. However, from November 19, 2010 to February 5, 2013, the Veteran is in receipt of a 100 percent rating for service-connected glomerulonephritis and residuals and SMC pursuant to 38 U.S.C. § § 1114(s)(1). Although a TDIU is warranted "where the schedular rating is less than total," a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)(1). Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). As TDIU could not assist the Veteran in obtaining SMC(s)(1) because he is already in receipt of that benefit from November 19, 2010 to February 5, 2013, entitlement to a TDIU for that period is moot. The Board must therefore determine if the Veteran is entitled to a TDIU from August 31, 2010 to November 19, 2010 and February 5, 2013 to June 27, 2014. The Veteran does not meet the schedular criteria from August 31, 2010 to November 19, 2010, so the Board will discuss entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) on an extraschedular basis in the remand portion of this decision. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 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 Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is in receipt of service connection for CAD, now rated as 60 percent disabling from August 31, 2010; posttraumatic stress disorder (PTSD), rated as 50 percent disabling from November 19, 2010, and 70 percent disabling from June 17, 2014; sleep apnea, rated as 50 percent disabling from August 4, 2014; glomerulonephritis and residuals, rated 100 percent disabling from November 19, 2010, and 30 percent disabling from February 5, 2013; prostate cancer with urinary incontinence, rated 20 percent disabling from November 19, 2010; diabetes, rated 20 percent disabling from November 19, 2010; tinnitus, rated 10 percent disabling from November 19, 2010; and noncompensable left shin scar, hemorrhoids, left ear hearing loss, ventral hernia, erectile dysfunction, anterior trunk surgical scarring, and keloidal scars. The Veteran's combined disability rating is 30 percent from August 31, 2010, 100 percent from November 19, 2010, 90 percent from February 5, 2013, and 100 percent from June 17, 2014. Thus, he is eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) from February 5, 2013 to June 17, 2014. As discussed previously, prior to November 19, 2010, the Veteran does not meet the threshold requirements for a TDIU under 38 C.F.R. § 4.16(a). In December 2011 a private physician found that the Veteran's CAD impacted his ability to work in that he could not engage in physical labor. On the Veteran's July 2011 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he completed four years of college and has not worked full-time since January 2010. Prior to that date, the Veteran was employed as a lab technician. A February 2013 VA examination noted that the Veteran reported his private nephrologist rendered him unable to return to work, physical or sedentary, after undergoing his kidney transplant in 2010. During a February 2015 VA PTSD examination, the Veteran reported he retired in 2010 due to health problems. He related that he had significant problems at work due to his anxiety and his strong need to escape and be alone when overwhelmed. The VA examiner found that the Veteran had difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. In correspondence from the Veteran's attorney in June 2014, the Veteran's attorney indicated that the Veteran stopped working because of his need to undergo dialysis and transplantation for renal failure. For the following reasons, entitlement to a TDIU from February 5, 2013 to June 27, 2014 is warranted. The evidence of record reflects that the Veteran graduated from college and worked as a lab technician until he retired in 2010 due to health problems. The Veteran experienced symptoms associated with his service-connected disabilities that result in significant functional impairments which would interfere with his ability to secure and follow any substantially gainful employment. For instance, the evidence of record shows that symptoms and impairments associated with his service-connected disabilities, to include residuals from his kidney transplant, anxiety, and CAD, would prevent him from performing any type of substantially gainful employment. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (The "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Moreover, the Board finds credible the Veteran's competent report during the February 2013 VA examination that his private nephrologist rendered him unable to return to work, physical or sedentary, after undergoing his kidney transplant in 2010. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson competent to report contemporaneous medical diagnosis). For the foregoing reasons, the Veteran is unable to complete job duties that he is qualified for based on his educational and occupational background due to his service-connected disabilities. Thus, his service-connected disabilities render him unable to secure or follow substantially gainful employment. Entitlement to a TDIU is therefore warranted from February 5, 2013 to June 27, 2014. REMANDED Entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) on an extraschedular basis from August 31, 2010 to November 19, 2010 As noted previously, the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a) from August 31, 2010 to November 19, 2010. Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b) from August 31, 2010 to November 19, 2010. However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted." Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66. The evidence of record here reflects that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to August 31, 2010 to November 19, 2010. Therefore, the issue of entitlement to a TDIU should be referred to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b) from August 31, 2010 to November 19, 2010. Accordingly, the matter is REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) from August 31, 2010 to November 19, 2010. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.