Citation Nr: 21072403 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-00 984 DATE: December 3, 2021 ORDER A total disability rating based on individual unemployability (TDIU), on an extraschedular basis, effective February 6, 2011, is granted. FINDING OF FACT Effective February 6, 2011, the Veteran has been unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU, on an extraschedular basis, from February 6, 2011, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971. The case is on appeal from a June 2013 rating decision. The case was most recently before the Board in April 2021. The Board denied service connection for traumatic brain injury (TBI) and granted service connection for headaches. At that time, the Board also referred the issue of a TDIU for the period prior to June 24, 2011 to the Director, Compensation Service for consideration in the first instance of a TDIU on an extraschedular basis. A TDIU prior to June 24, 2011. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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. 38C.F.R. §4.16(a). In addition, 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. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis In its April 2021 decision, the Board determined that the Veteran has been unemployed since February 5, 2011, when had to resign from his employment as a mechanic by reason of his service-connected coronary artery disease (CAD) and associated bilateral lower extremities arterial complications. The Board noted that while an award of TDIU on a schedular basis had been in effect since June 24, 2011, the issue of a TDIU remained on appeal as part of the May 2011 initial rating action which granted retroactive service connection for CAD pursuant to the provisions of the Nehmer Court Orders as set forth in 38 C.F.R. § 3.816. The Board also pointed out that, notwithstanding the fact that a TDIU remained on appeal, the Veteran did not meet the required criteria for a TDIU on a schedular basis prior to June 24, 2011. Accordingly, the Board referred the matter at issue to the Director, Compensation Service to consider in the first instance whether a TDIU on an extraschedular basis, for the period prior to June 24, 2011, is warranted. See 38 C.F.R. § 4.16(b); see also Wages v. McDonald, 27 Vet. App. 233, 236 (2015). At the outset, the Board notes that a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and for the reasons set forth below finds that, although prior to June 24, 2011, the Veteran did not meet the rating requirements set forth in 38C.F.R. §4.16(a), his service-connected CAD and associated complications and symptoms precluded him from securing or following substantially gainful employment. Private treatment records from Kelsey-Sebold Clinic reflect that in June 2011, the Veteran's private provider referred to his congestive heart failure (CHF) and CAD as "chronic cardiovascular conditions." The Veteran's medications were altered in an effort to control his heart disorders. See June 29, 2011 progress notes. Additionally, a diagnosis of peripheral artery disease (PAD) related to his heart disorder was issued per a December 2010 Doppler test, which in turn resulted in claudication of the lower extremities. On June 6, 2011, it was noted that the Veteran's chronic CAD-related symptoms were manifesting, among other things, by chronic calf pain bilaterally, aggravated by standing and walking. Shortly thereafter, the Veteran described his symptoms as constant with daily flare-ups, and that had gotten progressively worse over the course of one year (i.e., June 2010). See June 29, 2011 progress notes. Basic online research shows that claudication is a manifestation of PAD, which in turn is a sign of poor cardiovascular health. In addition, PAD is a known complication of diabetes mellitus, a condition for which an award of service connection has been also in effect since April 2005. See Claudication - Symptoms and causes - Mayo Clinic. Although it was not until June 29, 2011 that a clearer picture of the severity of the Veteran's service-connected heart disorders and associated symptoms was recorded by his private provider, the private physician's assessment was based on the Veteran's account of the worsening of his heart disorder-related symptoms dating back to at least one year from the assessment (i.e., June 2010), and the December 2010 doppler results revealing his CAD-related PAD, which in turn began to manifest by claudication of the lower extremities. Thus, the foregoing strongly suggests an increase level of severity beyond his June 24, 2011 TDIU application date. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). As previously noted, the Veteran described the manifestations of his disability as weakness, with constant and daily flare-ups interfering with his sitting, standing, walking, and driving. As noted by the Board in its April 2021 decision, in his June 2011 TDIU application, the Veteran made reference to his complicated heart-related disabilities and additional low endurance issues involving his legs, knees and feet as the reasons that prevented him from employment and forced him to retire in February 2011. See also June 2011 statement in support of claim (the Veteran reported he is not able to stand for periods longer than 5 to 10 minutes). Furthermore, pursuant to a March 2019 Board remand, the Veteran was afforded a VA examination in connection with his service-connected disabilities, to include his CAD. The examiner opined that the Veteran's CAD interferes with his ability to walk or run for long periods, as well as climbing and descending stairs, squatting, kneeling and lifting heavy objects due to low endurance, easy fatigability and weakness. With respect to the Veteran's hypertension, the VA examiner indicated that the impact of his disability is difficulty with aerobically demanding activities such as prolonged walking or running or climbing and descending stairs, working at heights, such as on a ladder or scaffolding, especially in increased ambient temperatures, impairment due to risk of intermittent light-headedness, and "generalized feeling of weakness" sometimes associated with hypertension as well as the side effects of antihypertensive medication. With respect to the Veteran's diabetes mellitus, the VA examiner indicated, in pertinent part, that the Veteran is limited by decreased physical stamina and endurance as well as limited ability for heavy exertion, prolonged standing and walking. After the Board remand, in September 2021, the Director of Compensation Services found that the Veteran is able to perform all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment as evidence failed to show occupational impairment from his service-connected nasal fracture, hypertension, bladder dysfunction, erectile dysfunction, and onychomycosis. With respect to the Veteran's heart disorder, the Director of Compensation Services found, on the basis of a June 2013 VA examination and METs test, that the Veteran's level of activity was reported to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood and jogging (6 mph). In light of the foregoing, it was determined that entitlement to a TDIU on an extraschedular basis is not warranted for the period prior to June 24, 2011. The Board notes, however, that the above September 2021 decision did not discuss the additional complications associated with his heart disorders beyond the Veteran's interview based METs test, and appears to have not considered the Veteran's educational and occupational background. The foregoing constitutes a failure to comply with the provisions set forth in Ray, 31 Vet. App. at 73 and Van Hoose v. Brown, 4 Vet. App. 361, 364 (1993). With that in mind, the Board will proceed to address the pertinent facts. In his June 2011 VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability), the Veteran reported last working full-time as a mechanic in February 2011, when he retired early, after approximately 10 years, as at that time he became unable to stand for more than five to ten minutes due to heart-related lower extremity issues, to include pain and numbness. Besides his career as a mechanic, the Veteran indicated that he completed high school through a GED test and that he did not have any other education or training. See June 2011 VA Form 21-8940, items 21-23A. The evidence of record does not show with certainty the Veteran's occupational history prior to February 2001. Nevertheless, an April 1972 application for a program of education or training reflects that the Veteran in fact requested educational assistance benefits from VA to pursue a certification as a refrigeration mechanic. See April 1972 VA Form 21E-1990. Moreover, during a December 2016 VA audiology examination, the Veteran reported performing the same type of job for 35 to 40 years. See also June 2013 General Medical VA examination report ("he was a mechanic for [] 38 years and retired in 2011). Here, the Veteran separated from active duty in 1971. Shortly after his separation, the evidence shows that he began to train to become a refrigeration mechanic. While the June 2011 TDIU application is limited to indicate the last place of employment where he worked as a mechanic until February 2011, additional evidence of record strongly suggests that the Veteran's occupational history is limited to employment as mechanic. Ever since June 2011, not only the Veteran has been in receipt of a TDIU (in a most recent April 2021 rating decision the RO granted a total and permanent schedular rating due to CAD effective June 24, 2011), but the evidence shows that the Veteran has been unemployed, without any further occupational experience. In sum, the evidence of record, when considered with the Veteran's lay statements, is persuasive as it demonstrates that the Veteran has not engaged in any type of gainful employment ever since and, therefore, confirms that his work experience appears to be limited to employment as a mechanic. There is no other indication in the record that the Veteran has any experience in, or the potential for, any other type of job, to include a non-physical one. Moreover, in his TDIU application the Veteran clearly stated that he completed his high school through a GED test and did not pursue any additional training or education thereafter. Ever since February 2011, his disabilities progressed and interfered with his occupational functioning to a greater degree, particularly due to his chronic cardiovascular conditions and associated lower extremities PAD and claudication, as these eventually turned into constant and daily issues to eventually render him unable to maintain his employment. His heart disorders were described as chronic per the June 2011 private provider notes, and directly interfering with his standing, walking, kneeling, and driving. The foregoing are movements that can be easily construed as fundamental in an occupation as a mechanic. In conclusion, the Board notes that the overall impact of the Veteran's service-connected disabilities could reasonably result in poor performance and poor task completion in any type of work environment. According to the 2019 VA examination report, the Veteran's service-connected disabilities result in fatigability, weakness, and low endurance issues involving his legs, knees, feet, which in turn interfere with squatting, kneeling, lifting heavy objects, and by decreasing his physical stamina and endurance, as well as limited ability for heavy exertion, prolonged standing and walking. While the opinion was not retrospective in nature, this conclusion seems in line with the Veteran's contemporaneous report of symptoms at the time of his application for a TDIU (i.e., symptoms such as weakness, pain, and numbness that have progressively gotten worse over the course of one year) and its acknowledgement by his June 2011 private provider that the symptoms progressively began get worse during the preceding year. Here, the Board finds that the private and VA examiner's statements and opinions as to the effect of his heart disorders and associated symptoms on his employability are sufficient and highly probative. (Continued on the next page) In light of the above, and after consideration of the Veteran's individual circumstances, to include his education, training, and work history, the Board finds that the combined severity of the Veteran's service-connected disabilities has precluded him from securing or following a substantially gainful occupation as of February 6, 2011, but not earlier, as that is the date the Veteran reported, and the evidence shows, he could no longer maintain his full-time employment. Although the schedular criteria are not met under 38 C.F.R. § 4.16(a), the Board concludes that a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, effective February 6, 2011, a TDIU on an extraschedular basis is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.