Citation Nr: 21074033 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 08-21 574 DATE: December 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1959 to March 1960, from May 1960 to April 1963, and from October 1977 to April 1994. He died in June 2015; the Appellant, his surviving spouse, is the substituted claimant. This matter has a lengthy procedural history. In relevant part, a September 2019 Board of Veterans' Appeals (Board) decision denied the claim of entitlement to a TDIU. The Appellant appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's September 2019 decision and remanding the appeal to the Board for readjudication consistent with the JMPR. In November 2020, the Board issued another denial for the claim of entitlement to a TDIU. The Appellant also appealed that denial to the Court. Then, in an August 2021 Joint Motion for Remand (JMR), the Court vacated the November 2020 Board decision and remanded this issue to the Board for further appellate review. A TDIU The Appellant contends that the Veteran's service-connected disabilities prevented him from securing and maintaining substantially gainful employment since 2009. 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. 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). A TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran 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 Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned 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 may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As of November 30, 2005, the Veteran was service-connected for at least six disabilities, with one such disability, coronary artery disease (CAD), assigned a 60 percent rating, for a combined evaluation of 70 percent. The remaining service-connected disabilities and assigned rating percentages were as follows: left hip pain degenerative changes (10 percent); bilateral tinnitus (10 percent); bilateral hearing loss (zero percent); hypertension (zero percent); and dermatitis of both feet (zero percent). As such, for the period on appeal, the Veteran met the schedular criteria required under 38 C.F.R. § 4.16 (a). The Board notes that the Veteran was also assigned a temporary total rating for his CAD, following surgery, from July 28, 2006 to October 31, 2006. The remaining question before the Board is whether, during the period on appeal, the Veteran was unable to secure and maintain substantially gainful employment as a result of only his service-connected disabilities. In this regard, the Appellant submitted a TDIU application in July 2019, on which she indicated that the Veteran had been too disabled to work since 2009. She noted that the Veteran worked in sales from 2003 to 2009, and that he was employed as a part-time assistant cook on a seasonal basis in 2012. The Appellant further reported that the Veteran had completed two years of college, earning an associate degree, and had completed a college course in computer science. In August 2006, the Veteran was afforded VA examinations for his service-connected disabilities. As previously stated, the Veteran underwent surgery in July 2006 to treat his CAD. The examiner noted that the Veteran's CAD caused a lack of stamina, weakness or fatigue, and increased absenteeism. The examiner further noted that the Veteran's CAD prevented the Veteran from doing chores, exercise, and sports, and resulted in severe restriction in the Veteran's ability to travel and go shopping. Regarding tinnitus, the Veteran reported that he had trouble hearing when he was in a quiet environment. He also reported experiencing left hip flareups of variable frequency. The examiner noted that the left hip disability prevented the Veteran from standing for more than 10 to 15 minutes, with significant functional effects such as pain, decreased mobility, and problems with lifting and carrying. The Veteran also reported experiencing flareups of dermatitis, which resulted in a need to miss two weeks of work during an outbreak. The Veteran was afforded additional VA examinations for his disabilities in February 2012, where he reported experiencing angina due to his CAD. Specifically, he reported the onset of angina with activities consistent with golfing without a cart, mowing the lawn with a push mower, and heavy yard work, such as digging. Regarding hearing loss, the examiner reported that the Veteran experienced moderate to severe hearing loss from 3000 to 8000 Hertz. The examiner also noted that the Veteran's tinnitus resulted in moderate effects on recreation and shopping, and mild effects on chores and sports. The Veteran reported that he had trouble walking during flareups of left hip pain, caused by cool and damp weather. In a statement submitted in July 2019, the Appellant noted that the Veteran's heart doctor cautioned the Veteran to avoid being on his feet and to reduce stress after heart surgery. She stated that this advice factored into the Veteran's decision to leave his sales job. She also reported that the Veteran continued to experience chest pain, shortness of breath, and fatigue, which may have impaired his ability to continue working. The Appellant further reported that the Veteran's left hip caused him to have occasional trouble walking and standing. She noted that his feet dermatitis interfered with his ability to walk and stand and, when especially severe, would cause him to miss work. In July 2019, the Appellant's attorney submitted a Social Security Administration (SSA) earnings statement for the Veteran, which shows that the Veteran did not earn more than $10,000 in any year after 2008. The attorney also reported that, while the Veteran's CAD improved somewhat after surgery in 2006, he was limited to no more than marginal employment due to fatigue and limitations in standing and walking. The Appellant's attorney also submitted an assessment report from a certified rehabilitation counselor, dated in May 2019. The counselor indicated that she reviewed the Veteran's claims file and conducted an interview with the Appellant. She opined that, based on the Veteran's medical records and the Appellant's statements, the Veteran was at least as likely as not unable to secure and follow substantially gainful employment from January 2009 until his death. She noted that the Dictionary of Occupational Titles states that sedentary employment requires exerting up to 10 pounds of force up to one third of the time to move objects, including the human body, and that it may involve walking or standing for brief periods of time. She stated that, based on that definition, the Veteran was unable to secure and maintain sedentary employment due to his CAD, left hip disability, and foot dermatitis. She further noted that the Veteran's symptoms were severe, resulting in limitations in standing and walking for prolonged periods due to fatigue, chest pain, and shortness of breath. The counselor stated that the Veteran's hearing loss and tinnitus resulted in limitations in his ability to communicate with co-workers, supervisors, and the public. She further stated that the Veteran's disabilities resulted in an inability to maintain concentration, pace, and absenteeism due to flareups. The counselor explained that the August 2006 VA examination reports reveal that the Veteran's left hip disability and feet dermatitis, including flareups, caused him to have trouble walking, and limited his standing to 10 to 15 minutes. She further explained that the August 2006 VA examiner found that the Veteran's CAD caused the Veteran to experience weakness, fatigue, and a lack of stamina. The counselor also noted that the February 2012 CAD examiner found that the Veteran experienced angina with an activity level consistent with golfing, mowing the lawn, and heavy yard work. She further noted the Appellant's statement regarding the effect of the Veteran's CAD on his ability to sustain an adequate pace and the requirement to take regular breaks to recover from shortness of breath and fatigue. The counselor concluded that the Veteran did not have sufficient transferable skills to perform sedentary employment, and to the extent that he did, he was unable to apply such skills due to impairments in sitting, standing, walking, and pace that prevented reliability and productivity. Based on a review of the record, the Board finds that the Veteran's service-connected disabilities may have rendered him unable to secure and maintain substantially gainful employment. The evidence demonstrates that the Veteran's service-connected CAD precluded some work, but did not preclude a job less physical than that of a part-time sales associate or a part-time assistant cook, or precluded all substantially gainful employment. Additionally, the Appellant's attorney submitted SSA earning statements for the Veteran, which show that he did not earn more than $10,000 in any year after 2008. Considering the Veteran's background and experience, the Board cannot determine the kind of work for which the Veteran would have been most suited, as his work history suggests that he had worked in positions that required prolonged sitting, standing, or walking. The record also reveals that the Veteran experienced fatigue and shortness of breath/difficulty breathing as reasons he was unable to work. These symptoms are closely related to symptoms he experienced from the nonservice-connected chronic obstructive pulmonary disorder (COPD), for which he was diagnosed in 1999. However, these symptoms were frequently paired with chest pain. Since it is unclear which symptoms precluded the Veteran from securing or maintaining substantially gainful employment, or made employment difficult, the Board will resolve all doubt in favor of the Veteran and conclude that the noted symptoms were due to his service-connected heart disability. The Board acknowledges the Veteran's reports that he had trouble walking, was unable to stand for more than 10 to 15 minutes at a time, and had trouble breathing and concentrating. The Veteran was competent to report symptoms that are readily observable to the average layperson, as in this case. In addition, the certified vocational counselor and VA examiners have provided adequate opinions as to how the Veteran's service-connected disabilities functionally impacted his ability to work. (Continued on the next page) Having considered the Veteran's education, training, and employment history, along with the impact of his service-connected disabilities, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to secure or follow substantially gainful employment. Therefore, the criteria for a TDIU were met; the claim is therefore granted. See 38 C.F.R. § 4.16. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.