Citation Nr: 21074336 Decision Date: 12/15/21 Archive Date: 12/14/21 DOCKET NO. 15-02 038 DATE: December 15, 2021 ORDER Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchiectasis, claimed as due to exposure to asbestos/herbicides and/or a service-connected disability, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective August 31, 2010 to September 30, 2014 and effective November 19, 2015 to the present, is granted. REMANDED The issue of entitlement to a TDIU from October 1, 2014 to November 18, 2015, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. There is no evidence of a respiratory disorder during the Veteran's military service and the Veteran's current respiratory disorders are not shown to be causally or etiologically related to any disease, injury, or incident in service, to include his presumed herbicide exposure, or caused or aggravated by a service-connected disability. 2. From August 31, 2010 to September 30, 2014 and again from November 19, 2015 to the present, the Veteran met the schedular criteria for a TDIU and the evidence has shown that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. From August 31, 2010 to September 30, 2014 and again from November 19, 2015 to the present, the criteria for a TDIU were met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1964 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2011 and October 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing in July 2018. A transcript of this proceeding has been associated with the claims file. In June 2021 correspondence, the Veteran was notified that the VLJ who conducted the July 2018 hearing was no longer employed at the Board and the Veteran was offered the opportunity to testify at a new Board hearing before a new VLJ. In July 2021 correspondence, the Veteran declined the opportunity to testify at a new Board hearing. This case was previously before the Board in November 2018, January 2021, and August 2021 at which times it was remanded for additional development. 1. Service connection for a respiratory disorder, to include COPD and chronic bronchiectasis, claimed as due to exposure to asbestos/herbicides and/or a service-connected disability, is denied. The Veteran contends that service connection is warranted for a respiratory disorder, claimed as due to exposure to asbestos/herbicides and/or a service-connected disability. Legal Criteria Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic diseases, listed in 38 C.F.R. § 3.309(a), are subject to presumptive service connection under 38 C.F.R. § 3.03(b). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to establish a disease is "chronic" in service, there must be a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time of service. When a chronic disease is shown in service, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a Veteran served at least ninety days of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such a disease shall be presumed to have been incurred in service, even though there is no evidence of such a disease during the period of active service. 38 U.S.C. §§ 1101,1112, 1113; 38 C.F.R. §§ 3.307,3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-2000 (Apr. 13, 2000). VA recognizes some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos-related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. The extent and duration of exposure to asbestos is not a factor for consideration. Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. Rating specialists must develop any evidence of asbestos exposure before, during, and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). If the evidence supports a conclusion that the Veteran's current disability, while caused by asbestos exposure, is due to intervening post-service exposure, the opinion must be very specific explaining the basis for this finding. See McGinty, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Relevant Medical Evidence Initially, the Veteran's service treatment records (STRs) show that he had service in Vietnam during the Vietnam era. As such, the Veteran's exposure to herbicides has been established. Furthermore, the Veteran's service personnel records show that he served in the Navy and was stationed on various ships which are known to have been made with asbestos at the time of the Veteran's service. As such, the Veteran's exposure to asbestos has also been established. Moreover, the Veteran is service connected for various disabilities, to include, ischemic heart disease, posttraumatic stress disorder (PTSD), sleep apnea, diabetes mellitus, diabetic peripheral neuropathy, tinnitus, and bilateral hearing loss. As such, the Board will consider whether either of these exposures and/or a service-connected disability has resulted in or aggravated a respiratory disorder as claimed by the Veteran. The Veteran's available STRs are negative for an indication of a respiratory disorder. The earliest indication of a respiratory disorder is a February 2005 claim for pension wherein the Veteran reported experiencing a lung disorder. A March 2005 VA treatment record showing a history of breathing problems and a subsequent February 2006 private treatment record shows a diagnosis of probable COPD, noting that the Veteran is a former smoker, quitting in 1980. This treatment record also shows computed tomography (CT) findings of bronchiectasis. A July 2011 private treatment record shows a confirmed diagnosis of COPD. The Veteran submitted an initial claim for service connection for a respiratory disorder in April 2011. In connection with this claim, he submitted a January 2015 statement from C.M.S. (his daughter and a nurse). C.M.S. noted that, during the Veteran's Naval service in Vietnam from September 1964 to August 1969, he served aboard the USS Noa, a vessel which utilized deck guns and the Veteran's bunk was directly below one of those deck guns. C.M.S. noted that it is well documented that the military used asbestos to insulate and fireproof their ships at that time and, when the guns were fired, all the dust and asbestos would shake off the pipes and overhead into the sailors and their bunks, particularly those unfortunate to have their bunks below deck under the guns. C.M.S. noted that she had spent many hours researching the National Institute of Health (NIH) website while obtaining her doctoral degree regarding the relationship between certain disabilities and herbicide exposure. C.M.S. noted that the Veteran was initially diagnosed with COPD in March 2006 and, according to a 2013 article regarding COPD on the NIH website, COPD can be attributed to "long-term exposure to other lung irritants such as chemical fumes or dust." The article also explains that, in COPD, less air flows in and out of the lungs for several reasons: loss of elasticity of the air sacs, increased mucus production from the airways, thick and inflamed walls of the airways, and or the walls between the individuals air sacks become destroyed. Additionally, COPD encompasses other respiratory issues. In other words, emphysema and chronic bronchitis are also a form of COPD. C.M.S. noted that the Veteran was exposed to both herbicides and asbestos during his military service, both of which are known to result in harmful effects. Furthermore, the amount of time it takes for those effects to exhibit symptoms varies from individual to individual. Pursuant to the November 2018 Board remand, the Veteran was afforded a VA respiratory examination in December 2019. Significantly, the December 2019 VA examiner noted diagnoses of both COPD as well as bronchiectasis and opined that such were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale for this opinion, it was noted that the Veteran currently has findings consistent with COPD. In 2004 he was diagnosed with chronic bronchiectasis but followup CAT (computed axial tomography) scan of thorax notes no evidence of bronchiectasis but instead, changes consistent with COPD. COPD is most likely due to 20 year pack smoking history. His CXR (chest X-ray) and CT scans do not demonstrate any objective evidence of any asbestos exposure. Based on current literature and presumptive diagnosis through VA herbicide exposures, COPD is not a presumptive diagnosis nor does the literature demonstrate a relationship between herbicide exposure and COPD. The Veteran was not treated for COPD until 2004. Another VA medical opinion regarding secondary service connection was obtained in August 2020. Significantly, the August 2020 VA examiner noted that, after review of the record, the Veteran's COPD was less likely as not related to his service-connected diabetes and/or ischemic heart disease as these disabilities are separate and distinct medical conditions and one condition does not cause or have effect on the other. Pursuant to the January 2021 Board remand, the Veteran was afforded another VA respiratory examination in March 2021. Significantly, this examination report shows a diagnosis of COPD (since 2004) and also notes a history of bronchiectasis. However, the examiner indicated that the Veteran's previous diagnosis of bronchiectasis most likely either resolved with treatment or was an error as there was no current evidence of bronchiectasis in either lung. Instead, the Veteran's current symptoms were wholly consistent with his diagnosed COPD. The March 2021 VA examiner also opined that the Veteran's COPD was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions. As rationale for this opinion, with regard to the question of bronchiectasis, the examiner noted that medical literature is silent for any mechanism by which ischemic heart disease, ischemic cardiomyopathy, type 2 diabetes or hypertension may cause or aggravate bronchiectasis. Common conditions that damage the airways and raise the risk of bronchiectasis are cystic fibrosis, immunodeficiency disorders, pulmonary aspergillosis, primary ciliary dyskinesia, and connective tissue diseases such as rheumatoid arthritis and Crohn's disease and a review of the claims file is silent for any of the above conditions. Additionally, there is no current evidence of diagnosis of or treatment for chronic bronchiectasis. With regard to the Veteran's COPD, current medical literature is silent for any mechanism by which ischemic heart disease, ischemic cardiomyopathy, type 2 diabetes, or hypertension may cause or aggravate COPD. Cigarette smoking is the leading cause of COPD. Most people who have COPD smoke or used to smoke as smoking is responsible for 40 to 70 percent of COPD cases and exerts its effect by causing an inflammatory response, cilia dysfunction, and oxidative injury. In an April 2021 addendum opinion, the March 2021 VA examiner addressed whether the Veteran's respiratory disorder is aggravated by a service-connected disability. Significantly, the examiner noted that a review of current medical literature is silent for any mechanism by which ischemic heart disease, ischemic cardiomyopathy, type 2 diabetes, or hypertension may aggravate or cause COPD and/or bronchiectasis. The examiner reiterated that the Veteran did not have a current diagnosis of bronchiectasis and that cigarette smoking is the leading cause of COPD. Pursuant to the August 2021 Board remand, another medical opinion was obtained which considers medical literature submitted by the Veteran concerning a possible relationship between the Veteran's COPD and his newly service-connected sleep apnea. Significantly, in October 2021 the March 2021 VA examiner again found that the Veteran's respiratory disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. Significantly, the examiner cited all of the arguments noting a possible relationship between COPD and sleep apnea and found that none of the referenced articles suggest any causal relationship between sleep apnea and other respiratory disorders (i.e., COPD and/or bronchiectasis). Significantly, the examiner noted that the current medical literature is silent for any mechanism by which COPD and/or bronchiectasis (intrinsic lung disorders) can be caused or aggravated by sleep apnea (an oropharyngeal structural disorder). Common conditions that damage the airways and raise the risk of bronchiectasis are cystic fibrosis, immunodeficiency disorders, pulmonary aspergillosis, primary ciliary dyskinesia, and connective tissue diseases such as rheumatoid arthritis and Crohn's disease. As above, cigarette smoking is the leading cause of COPD and most people who have COPD smoke or used to smoke. Significantly, smoking is responsible for 40 to 70 percent of COPD cases and exerts its effect by causing an inflammatory response, cilia dysfunction, and oxidative injury. Also of record are VA and private treatment records dated through August 2021 which show treatment for the Veteran's COPD but do not provide any additional insight into the etiology of his COPD. Analysis Upon review of the above evidence, the Board finds that service connection for a respiratory disorder is not warranted. Initially, the Board notes that COPD is not included as a chronic condition under 38 C.F.R. § 3.309(a). Furthermore, COPD is not listed as a presumptive herbicide-related disability pursuant to 38 C.F.R. § 3.309(e). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. As above, STRs are negative for an indication of a respiratory disorder. The earliest indication of a respiratory disorder is the Veteran's February 2005 claim for pension noting lung problems, approximately 36 years after his discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Furthermore, the December 2019 VA examiner opined that the Veteran's respiratory disorders were not related to an incident of the Veteran's active military service, to include his presumed exposure to herbicides, and was instead related to the Veteran's 20 year history of smoking. Significantly, the December 2019 VA examiner noted that there was no medical literature relating COPD and herbicide exposure and also noted that the Veteran's CXR and CT scans do not demonstrate any objective evidence of any asbestos exposure. While regard to the January 2015 statement from C.M.S., the Board notes that while this statement suggests a possible relationship between the Veteran's COPD and his in-service exposure to herbicides/asbestos, it does not specifically find that such a relationship was at least as likely as not. Nor does the statement consider the Veteran's relevant medical history, to specifically include his 20 year history of smoking and the total lack of diagnostic evidence of asbestos related pleural disease. As such, the Board finds the VA medical opinions to be more probative with regard to this matter. The claim is also denied on a secondary basis. As above, the August 2020, March 2021, April 2021, and October 2021 VA opinions each found that a respiratory disorder is not secondary to or aggravated by his service-connected disabilities and was instead due to the Veteran's 20 year history of smoking. The Board finds these opinions to be highly probative, as they are based on an examination of the Veteran and review of the pertinent records, and they include the underlying reasons for the conclusions reached. While the Veteran has alleged that his respiratory disorder is related to his military service, the Board finds that the question regarding the potential relationship between the Veteran's respiratory disorder and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the Veteran's respiratory disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. A TDIU, effective August 31, 2010 to September 30, 2014 and effective November 19, 2015 to the present, is granted. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. The Veteran is currently service-connected for ischemic heart disease, evaluated as 100 percent disabling; PTSD, evaluated as 50 percent disabling; sleep apnea, evaluated as 30 percent disabling; diabetes mellitus II with erectile dysfunction and hypertension, evaluated as 20 percent disabling; diabetic peripheral neuropathy of the four extremities, each extremity evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; diabetic peripheral neuropathy of the bilateral lower femoral nerves, each evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensably disabling. The Veteran's combined evaluation for compensation purposes is 20 percent beginning March 13, 2006, 70 percent beginning August 31, 2010, 100 percent beginning April 25, 2012, 40 percent beginning October 1, 2004, 80 percent beginning November 19, 2015, 90 percent beginning June 6, 2016, and 100 percent beginning July 28, 2016. 38 C.F.R. § 4.25. As such, he met the threshold criteria for a TDIU from August 31, 2010 to September 30, 2014 and beginning November 19, 2015. The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities. A review of the record shows that the Veteran last worked full-time as an electronic technician in February 2004. Also, records from the Social Security Administration show that the Veteran has been in receipt of Social Security disability benefits due, at least in part, to his service-connected diabetes, hypertension, and PTSD, since July 2, 2003. The Veteran submitted an initial claim for service connection for a respiratory disorder in April 2011. He later submitted claims for additional disabilities, to include diabetes (with resulting complications) in August 2011, ischemic heart disease in April 2012, and PTSD in June 2016. During the course of these claims, the Veteran was afforded several VA examinations. Significantly, during an October 2011 VA diabetes examination, it was noted that the Veteran's diabetes (with resulting complications) did not impact his ability to work. Similarly, an April 2012 private disability benefits questionnaire as well as a November 2013 VA examination pertaining to the Veteran's ischemic heart disease shows that the Veteran's heart disability does not impact his ability to work. However, the April 2012 private disability benefits questionnaire shows that the Veteran's ischemic heart disease precluded activities such as golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). Also, an August 2016 VA heart examination report shows that the Veteran's heart disability impacts his ability to work as he gets easily fatigued, winded, and dizzy with regular activity. Also, a January 2018 VA psychiatric examination report notes that the Veteran's varied careers prior to his retirement may point to his inability to work well with others. The Veteran submitted a formal claim for a TDIU due to his service-connected disabilities in July 2017. Notably, the Veteran has been awarded a combined 100 percent disability rating since July 28, 2016. The United States Court of Appeals for Veterans Claims (Court) has held that an award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level), when considered together with another disability separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted. Bradley, at 293-94. Because of this holding, VA's General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley. See 75 Fed. Reg. 11229-04 (March 10, 2010). While the issue of entitlement to a TDIU from April 25, 2012 to September 30, 2014 and beginning July 28, 2016 may be moot in this case, the issue of entitlement to a TDIU in between these dates certainly is not moot. Initially, while the Veteran did not submit a formal claim for a TDIU until July 2017, the Board took jurisdiction over the TDIU claim as part and parcel of the claim for an increased initial evaluation of the Veteran's service-connected ischemic heart disease pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, the heart claim originated from an April 2012 claim for service connection for a heart disability which was subsequently granted effective August 31, 2010, the effective date of the statute or regulation establishing a presumption of service connection for coronary disease, pursuant to Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (If a Nehmer "class member" is entitled to a disability compensation for a "covered herbicide disease," the effective date of the award will be the later of the date such claim was (originally) received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(1)-(2)). Furthermore, a review of the record shows that as early as February 2004, the Veteran was unemployed due, at least in part, to service-connected disabilities. As such, the Board finds that a claim for a TDIU has been pending since August 31, 2010. However, while the Veteran met the schedular criteria for a TDIU from August 31, 2010 to September 30, 2014 and from November 19, 2015 to the present, he did not meet the schedular criteria for a TDIU from October 1, 2014 to November 18, 2015. As above, the Veteran had a combined disability rating of 70 percent beginning August 31, 2010, 100 percent beginning April 25, 2012, 40 percent beginning October 1, 2014, 80 percent beginning November 19, 2015, 90 percent beginning June 6, 2016, and 100 percent beginning July 28, 2016. 38 C.F.R. § 4.25. As such, the remaining question is whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment from August 31, 2010 to September 30, 2014 and from November 19, 2015 to the present. As above, a review of the record shows that the Veteran has been unemployed since February 2004 and has been in receipt of Social Security disability benefits since July 2003. Also, a review of the record shows that, as early as April 2012, the Veteran's ischemic heart disease precluded activities such as golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). Such is competent and credible evidence that the Veteran has been unable to obtain and maintain substantially gainful employment since August 31, 2010. Therefore, the Board finds that a TDIU is warranted effective August 31, 2010 to September 30, 2014 and effective November 19, 2015 to the present, as the evidence demonstrates that the Veteran met the requirements of 4.16(a) and was unable to secure or maintain substantially gainful employment during these time periods. In short, the Board has resolved reasonable doubt in the Veteran's favor and finds that a TDIU is warranted from August 31, 2010 to September 30, 2014 and effective November 19, 2015 to the present. As to whether a TDIU is warranted on an extraschedular basis from October 1, 2014 to November 18, 2015, the Board is remanding this issue for referral to the Director, Compensation Service pursuant to 38 C.F.R. § 4.16 (b). REASONS FOR REMAND 3. The issue of entitlement to a TDIU from October 1, 2014 to November 18, 2015, on an extraschedular basis, is remanded. As above, the Board finds that the Veteran's claim for a TDIU has been pending since his August 31, 2010. Even though the Veteran does not qualify for a TDIU from October 1, 2014 to November 18, 2015 pursuant to 38 C.F.R. § 4.16(a), 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, Compensation Service, 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 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Given the fact that the Veteran was neither substantially nor gainfully employed at the time of his claim for service connection for a heart disability, under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the TDIU claim for a TDIU from October 1, 2014 to November 18, 2015 should be submitted to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis from October 1, 2014 to November 18, 2015. The matter is REMANDED for the following action: Refer this case to the Under Secretary for Benefits of the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) from October 1, 2014 to November 18, 2015. Attention is invited to the records from the Social Security Administration showing that the Veteran was found to be disabled due to his diabetes, hypertension, and heart disability effective July 2, 2003 and the April 2012 private disability benefits questionnaire showing that the Veteran's ischemic heart disease precluded activities such as golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). See VBMS, documents labeled Medical Treatment Records Furnished by SSA, receipt date 8/9/17, page 11 and VA-21-0960A-1 Ischemic Heart Disease Disability Benefits Questionnaire, receipt date 5/7/12, page 2. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.