Citation Nr: 21071389 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-01 616 DATE: November 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 19, 2013 is granted. FINDING OF FACT Prior to February 19, 2013, the Veteran's service connected disabilities precluded him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to February 19, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1966 to February 1968. He passed away in May 2017. The appellant is his surviving spouse and has been properly substituted as claimant. 38 U.S.C.§ 5121A (2012). This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board issued a decision denying the Veteran's claim for a TDIU. The appellant appealed the May 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board's May 2020 decision and remanding this matter for additional development. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 19, 2013. The appellant, by way of substitution, contends that the Veteran's service-connected disabilities rendered him unemployable, and that the Veteran was therefore entitled to TDIU, from July 30, 2010 to February 19, 2013. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); 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. §§ 3.340, 3.341, 4.16(a). 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. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran's service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). The Veteran was service connected for the following disabilities prior to February 19, 2013: coronary artery disease, rated as 60 percent disabling as of July 30, 2010; diabetes mellitus, type II with nephropathy, rated as 20 percent disabling as of July 30, 2009; anxiety disorder (claimed as posttraumatic stress disorder (PTSD)), rated as 10 percent disabling as of September 3, 2010; and erectile dysfunction, rated as 0 percent disabling as of July 30, 2010. Thus, the Veteran's combined rating for his service-connected disabilities was 20 percent from July 30, 2009, and 70 percent from July 30, 2010. From at least July 30, 2010, the Veteran met the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). Thus, the remaining question is whether the Veteran's disabilities cause him to be unable to secure or maintain a substantially gainful occupation, prior to February 19, 2013. The Veteran submitted VA Forms 21-8940 in August 2011 and February 2013. He reported that he last worked full time as an auto executive sometime between March 2005 and March 2006. He claimed he stopped working full time due to his service-connected disabilities. Further, the Veteran reported that he was currently employed part-time. As to his education, he stated that he finished four years of college and earned a master's degree in business management in 2001. No other training or education was reported. According to an October 2010 VA treatment note, the Veteran had to quit his job as an executive with the automobile industry because he was unable to travel on an airplane due to claustrophobia, which is associated with his service-connected anxiety disorder. A November 2010 statement from a VA therapist indicates that the Veteran continued to experience symptoms of avoidance and hyperarousal. He had problems with anger and irritability that impacted his relationships with his family and others, and caused difficulties in social and occupational functioning. The Veteran was afforded a VA examination in May 2011 concerning the issue of employability. According to the examiner, the Veteran's main impairing diagnoses were hypertension with a note of abnormal microalbuminuria likely from diabetes mellitus with nephropathy, and coronary artery disease. The examiner concluded that the Veteran's level of cardiac function did not preclude him from a full-time sedentary job. The examiner explained that given the Veteran's service-connected disabilities and clinical information, it was at least as likely as not that the Veteran was able to maintain a gainful sustained full time sedentary capacity. In response to a VA request, the Veteran's part-time employer reported that the Veteran had worked as an adjunct professor since December 2001 and that he continued to work in that capacity. No other information was provided by the Veteran's prior employers. The Veteran was afforded a VA examination in March 2013 for his diabetes mellitus. According to the examiner, the Veteran retired from the automobile industry in 2002. It was noted that the Veteran took a retirement package because he recently had a bypass and could not handle the walking in airports involved with traveling for the job. He was noted to be currently employed as an adjunct teacher, but had not taught since November 2012 because it tired him out. Given the history of congestive heart failure, it was as likely as not that the Veteran's fatigue and exercise limitation was related to his cardiac disease. The Board notes he was subsequently assigned a 100 percent rating for his coronary artery disease as of February 19, 2013. According to a November 2014 VA examination for his psychiatric condition, the Veteran stated that he was unable to work due to his service-connected heart disease. However, the examiner noted that as this was a psychological examination, she was unable to provide information regarding the Veteran's heart condition. However, she noted that his mental health disorder alone did not render him unemployable. Pursuant to the August 2015 Board remand, the Veteran was afforded VA examinations in March and April of 2016 to determine if the Veteran was unable to obtain or maintain a substantially gainful occupation as a result of his service-connected disabilities. The examiner for the Veteran's coronary artery disease stated that that this condition limits his ability to perform physical work, but the Veteran is able to perform sedentary type of work for short periods of time. Additionally, the examination provided the opinions that the Veteran's kidney condition related to his diabetic neuropathy, diabetes, and erectile dysfunction do not impact his ability to work. As to the Veteran's anxiety disorder, the examiner reported that the Veteran's level of occupational and social impairment was with reduced reliability and productivity. In June 2017, the Veteran received an independent vocational assessment from a vocational evaluator, P.C. The evaluator stated he reviewed the Veteran's entire VA claims file and formed his conclusions based upon the Veteran's service-connected disabilities only. P.C. further explained that he relied on the Veteran's VA examinations from May 2011, March 2013, March 2016, and April 2016. The evaluator found that the Veteran had a long history of diabetes and coronary heart disease which resulted in the inability to perform basic daily activities of living to completion. "He is experiencing significant episodes of extreme fatigue which prevents him from maintaining a regular and predictable daily or work schedule. Additionally, he is experiencing interruptions in concentration and the inability to complete tasks in a timely manner. The above symptoms prevent [the Veteran] from performing job tasks associated with even sedentary employment in a regular and predictable manner." Additionally, P.C. opined that between July 30, 2010 and February 19, 2013, the Veteran's part-time employment did not meet the definition of full-time substantially gainful competitive employment, and that his employment would be considered marginal sheltered employment. He explained that the Veteran was able to work on a part-time basis because his employer would accommodate the need for frequent medical appointments as well as "periods of time when exasperation of symptoms required him to take extended periods of leave from employment for recovery." P.C. further stated to meet the standard of substantially gainful competitive employment, a worker "must be able to meet the pace and production standards outlined by the employer without special accomodation." Therefore, the evaluator concluded that due to the Veteran's service-connected disabilities he had been unable to maintain substantially gainful competitive employment on a regular and consistent basis between July 30, 2010 and February 19, 2013. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). The Board notes the appellant's contention that the Board's reliance in the May 2020 decision "on the VA medical opinions of record as competent evidence concerning the issue of whether the Veteran was unemployable and capable of substantially gainful employment for the period from 2010 until 2013 was erroneous," and that "while VA medical examiners are competent as to medical matters, whether a claimant is employable or capable of substantially gainful employment is not a medical matter that such a medical examiner is competent to discuss." In considering the question of the Veteran's capability of securing and following substantially gainful employment, the evidence indicates that although the Veteran was able to obtain part time employment with many accommodations, under normal circumstances he would have major restraints finding substantially gainful employment due to his frequent need for medical appointments and extended leave, interruptions in concentration, physical limitations, avoidance, hyperarousal, claustrophobia, irritability, and his inability to complete tasks in a timely manner. Based upon the forgoing, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's service-connected disabilities precluded substantially gainful employment between July 30, 2010 and February 19, 2013. The Board finds the vocational opinion from P.C. to be probative because it is based on a review of the file, consideration of the Veteran's contentions, and his education and experience as a vocational expert. The evidence is thus at least evenly balanced as to whether the Veteran's service-connected coronary artery disease, diabetes, and anxiety disorder rendered him unable to secure or follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted as of July 30, 2010. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.