Citation Nr: 21071915 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-08 768 DATE: December 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), prior to July 1, 2020, is denied. FINDING OF FACT Prior to July 1, 2020, the Veteran's service-connected disabilities did not prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 1, 2020, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968. This matter is on appeal from a December 2015 rating decision. In November 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. In March 2020 and May 2021, this matter was remanded by the Board for further development. The Board finds that the evidentiary development complies with the prior remand directives and the claim is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in an October 2021 Brief Veteran's representative stated, "This appeal does not involve disagreement with a denied increased rating claim, it involves disagreement with the originally assigned rating percentage which was based on the evidence of record at the time of the initial award of service connection and the possible grant for TDIU entitlement." To the extent that the Veteran seeks entitlement to an effective date earlier than July 1, 2020, for the assignment of an 100% rating for his heart disability, the Veteran is advised to file the claim with the Agency of Original Jurisdiction (AOJ) on the proper form, so that the AOJ can consider the claim in the first instance. TDIU The Veteran contends that he has been unemployable since September 2013, in part, due to his service-connected PTSD and heart disability. See March 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability and November 2019 Hearing Transcript. VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms "substantially gainful occupation" and "substantially gainful employment" in § 4.16 are "synonymous"). Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Subsequent to the Board's March 2020 remand, in a September 2020 rating decision the RO increased the rating for the Veteran's ischemic heart disease to 100%, effective July 1, 2020. However, prior to July 1, 2020, the Veteran is service-connected for ischemic heart disease and PTSD, each rated 30% disabling; tinnitus, rated 10% disabling; and a scar from coronary bypass surgery and right ear hearing loss, each rated zero percent disabling. Accordingly, his total combined rating is 60% and the Veteran does not meet the minimum schedular requirements for TDIU prior to July 1, 2020. See 38 C.F.R. § 4.16 (a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Although the Veteran has not met the schedular percentage requirement prior to July 1, 2020, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). His service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Turning to the evidence, on August 2015 VA initial posttraumatic stress disorder Disability Benefits Questionnaire (DBQ) examination the Veteran presented with a post-military occupational history which indicates that he retired a few years prior from farming to help his son. He also completed all the chores around the house. The Veteran stated that he stopped working due to his arthritis which was so bad some days he was unable to walk. In an October 2015 VA addendum the psychologist opined that the Veteran's PTSD caused no impairment as to his ability to function in an occupational environment. The rationale was that he: 1) retired a few years ago as a famer; 2) continued to assist his son; 3) traveled with his wife; 4) reported that he could do all chores around the house; 5) did not evidence significant social nor occupational impairment from PTSD symptoms alone; 6) experienced arthritic and chronic pain which is more "proximately etiological" to the residual level of occupational functioning. In November 2019, the Veteran testified that he was unable to work due to his heart disability. The Veteran's wife testified that it caused shortness of breath, dizziness, and difficulty concentrating and caused frequent falls. He testified that due to heart disability he avoided stairs and did not like to do a lot of driving. On March 2020 VA PTSD examination a VA psychologist opined that the Veteran had no job-related difficulties secondary to service-connected mental health issues. On July 2020 VA heart conditions DBDQ examination a VA nurse practitioner opined that the Veteran's heart disability impacted employment. Due to the heart disability, he easily became short of breath, dizzy, fatigued, and lightheaded with minor activities such as walking a block. The Veteran was unable to perform strenuous activity and had difficulty walking, a slow and unsteady gait, and a history of falls. The nurse practitioner stated that he missed zero to one week of time from employment in the last 12 months which suggests that he was capable of some form of employment. However, in a separate July 2020 VA medical opinion the examiner opined that the Veteran was unable to perform sedentary work. Based on the Veteran's complaints of being unable to secure and follow substantially gainful occupation due to his service-connected disabilities, specifically his heart disability, in March 2020 the Board remanded this matter for remand for referral of the claim for TDIU prior to July 1, 2020. The Board also requested clarification from the Veteran concerning a more thorough description of his employment during the appeal period and to give him an opportunity to provide VA with evidence regarding his earnings, based on the nurse practitioner's statement that he was working and had his own business in July 2020. Pursuant to the Board's May 2021 remand, in June 2021 the Veteran submitted a copy of his 2014 Schedule C (Form 1040) which indicates a profit of $30,781. At that time, he owned a lumber company at that time. In addition, in a July 2021 administrative decision the Director of Compensation Service opined that, "[t]he available evidence does not support the Veteran's service-connected disabilities, prevents all types of gainful activity, prior to July 1, 2020." The Director recommended denial of the claim of entitlement to TDIU on an extraschedular basis, prior to July 1, 2020. In August 2021, the Executive Director of Compensation Service issued an advisory opinion regarding extraschedular consideration for TDIU. The Executive Director stated that a review of the file shows that the Veteran was last employed as a self-employed farmer in April 2013. A March 2020 TDIU statement noted that there were no job-related difficulties secondary to service-connected mental health issues. A March 2020 examination noted the Veteran was retired and there was no impact caused by the tinnitus with ordinary conditions including his ability to work. A July 2020 VA heart examination noted the Veteran reported he was retired, but worked prior to the examination, had his own business, and lost more no more than 1 week of time from employment in the last 12 months. She conceded that the Veteran's service-connected disabilities caused functional limitations. However, she opined that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected disabilities prior to July 1, 2020. After consideration of all relevant evidence, the Executive Director of Compensation Service determined the overall evidence did not support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to July 1, 2020. The Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or following substantial gainful employment prior to July 1, 2020. In this case, the Board finds that the Director's July 2021 opinion and Executive Director's December August 2021 advisory opinion provide highly probative and overwhelming evidence against this claim. The Director and Executive Director reviewed the claims file and considered the Veteran's documented and reported history. Based on that review, they found that the Veteran was not unemployable due to his service-connected disabilities prior to July 1, 2020. Their opinions provide probative evidence against the Veteran's claim of high probative weight. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making this determination, the Board acknowledges that the July 2020 VA examiner's opinion that opined that he was not capable of sedentary employment at that time. However, the examiner also opined that in the year prior to the examination the Veteran lost no more than 1 week of employment due to his heart disability which is also probative evidence against the Veteran's claim prior to July 1, 2020. In considering whether TDIU is warranted prior to July 1, 2020, the Board has also considered the Veteran's statements and testimony that his service-connected disabilities made him unemployable. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno, supra. However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations. Those determinations require training, which the Veteran is not shown to have. The Board has considered the October 2021 Brief and the representative's contentions that the evidence of record supports the assignment of TDIU on an extraschedular basis prior to July 1, 2020. These facts include VA treatment records dated in March 2020 which show that the Veteran had repeated falls, lightheadedness, dizziness, and shortness of breath more frequently, cardiac catherization and 2 vessel CABG since February 2008. However, after a careful review of the evidence record, the Board finds that the preponderance of the evidence is against the award of a TDIU rating on an extraschedular basis, prior to July 1, 2020. While the Board does not disagree that his service-connected disabilities, including his heart disability, impacted his ability to work to some degree, the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to July 1, 2020. Moreover, on August 2015 VA initial posttraumatic stress disorder DBQ examination the Veteran stated that he stopped working due to his arthritis which was so bad some days he was unable to walk. In an October 2015 VA addendum the August 2015 VA psychologist opined that the Veteran's arthritic and chronic pain contributed to his residual level of occupational functioning. In other words, the examiner opined that the Veteran's non-service connected arthritis contributed to his employability prior to July 1, 2020. (Continued on the next page) Overall, the evidence of record does not show that the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant TDIU prior to July 1, 2020. As such, the preponderance of the evidence is against the Veteran's claim, and the benefit of the doubt rule does not apply. Therefore, entitlement to a TDIU prior to July 1, 2020, including on an extraschedular basis, is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.