Citation Nr: 21074492
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 16-55 318
DATE: December 15, 2021

ORDER

A disability rating of 30 percent, but no higher, for the service-connected coronary artery disease (CAD) is granted.

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period on appeal from November 23, 2016 is granted.

REMANDED

A TDIU due to service-connected disabilities, to include on an extraschedular basis, for the period on appeal prior to November 23, 2016 is remanded.

FINDINGS OF FACT

1. Metabolic equivalent (MET) testing shows that the Veteran develops dyspnea, fatigue, angina, and dizziness at a workload of greater than 5 but not greater than 7 METs, but no such symptoms at workload of 5 METs or less, and there is no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure in the past year.

2. As of November 23, 2016, the Veteran's service-connected disabilities included posttraumatic stress disorder (PTSD), rated as 50 percent disabling, a bilateral hearing loss disability, rated as 40 percent disabling, CAD, rated as 30 percent disabling, diabetes mellitus, rated as 20 percent disabling, a deviated nasal septum, rated as noncompensable, and residuals of a left mandible fracture, rated as noncompensable.

3. As of November 23, 2016, the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment consistent with his education and work history.

CONCLUSIONS OF LAW

1. The criteria for a rating of 30 percent, but no higher, for the service-connected CAD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005.

2. The criteria for the assignment of a TDIU have been met from November 23, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1968 to November 1971.

This case is before the Board of Veterans' Appeals (Board) on appeal from a August 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for CAD and assigned an initial disability rating of 10 percent, effective June 30, 2014.

In October 2014, VA received the Veteran's Notice of Disagreement (NOD). In October 2016, the RO issued a Statement of the Case (SOC). In November 2016, VA received the Veteran's VA Form 9 appeal to the Board.

Although the Veteran's November 2016 VA Form 9 included a request for a hearing before a Veterans Law Judge (VLJ), in October 2019, the Veteran's previous Veterans Service Organization (VSO) representative submitted an Informal Hearing Presentation (IHP) in lieu of further argument. Therefore, the hearing request was deemed withdrawn. 38 C.F.R. § 20.704(g).

In a November 2019 decision, the Board denied the Veteran's claim for increased rating for CAD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). 

In an October 2020 Court Order granting a Joint Motion for Remand (JMR) the Court vacated the Board's November 2019 decision and remanded the case for further development in compliance with the directives specified in the JMR. 

At the outset, in the October 2020 JMR, the Court concluded that the November 2019 Board decision had failed to address the reasonably raised issue of entitlement to a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this regard, during the period on appeal, both the Veteran and his representatives have contended that the Veteran's service-connected disabilities, including CAD, resulted in unemployability. Specifically, both the Veteran's current and previous representatives have raised the issue of entitlement to a TDIU as part and parcel of the increased rating claim on appeal. See November 2021 Appellate Brief; October 2019 IHP. Furthermore, during a June 2018 VA psychiatric examination, the Veteran stated that "he is trying to get a job but no one will hire him because of his heart problems and other medical issues." Accordingly, an inferred claim for entitlement to a TDIU is reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Furthermore, the Veteran's representative has submitted evidence including updated VA treatment records, a Social Security Administration (SSA) earnings record, and a November 2021 vocational examination and opinion. The Veteran's representative has specifically waived agency of original jurisdiction (AOJ) consideration of this evidence. Accordingly, no initial AOJ consideration of this evidence is warranted.

Increased Rating

1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected CAD.

The Veteran, through his representative, asserts entitlement to a 30 percent initial disability rating for his service-connected CAD.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). 

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's CAD is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. Effective November 14, 2021 VA amended the rating criteria for CAD under DC 7005.

Prior to November 14, 2021, DC 7005 provided a 10 percent rating where a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required. A 30 percent rating was warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.

From November 14, 2021, CAD is ratted pursuant to the General Rating Formula for Diseases of the Heart. The General Rating Formula for Diseases of the Heart provides a 10 percent rating where a workload of 7.1-10.0 metabolic equivalents (METs) results in heart failure symptoms, or continuous medication is required to treat the disease. A 30 percent rating is warranted where a workload of 5.1-7.0 METs results in heart failure symptoms, or where there is evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g. multigated acquisition scan or magnetic resonance imaging). 

The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application.

With regard to both the old and new rating criteria, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which breathlessness, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms may be used. Id.

For purposes of the General Rating Formula for Diseases of the Heart, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104, Note (3).

In this case, prior to November 14, 2021, only for the old rating criteria for rating CAD may be considered; however, from November 14, 2021, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied.

During an August 2014 VA examination for his CAD, the Veteran stated that he could no longer perform the "heavy lifting" required by his job as an assembler in a factory. The examiner identified a July 2014 interview-based METs test that revealed an estimated METs workload of greater than 5 but not greater than 7 METs with symptoms of dyspnea, fatigue, and angina during activity. However, the examiner found that the estimated METs level was not due solely to CAD; instead, the examiner concluded that the limitation in METs level was due to multiple factors and that it was not possible to accurately estimate the percentage due to CAD. The examiner also identified an ECG from August 2014 that revealed a left ventricular ejection fraction (LVEF) of 74 percent. The examiner concluded that the LVEF from the August 2014 ECG more accurately reflected the severity of the Veteran's CAD. Furthermore, the examiner found that the Veteran's dyspnea and fatigue were "more likely than not secondary to deconditioning and tobacco abuse on his pulmonary system."

In a September 2014 statement, the Veteran stated that his work makes him short of breath and causes his chest to ache. He also noted that he had difficulty rising from the floor or lifting anything over 30 pounds and would suffer chest pain when attempting to lift heavy weights. See September 2014 Veteran statement. A coworker, K.K., noted that the Veteran's work involved "[d]rilling holes by hand, torqueing bolts, and simple lifting." K.K. stated that the Veteran "is easily fatigued early on during our shift" and has a "greatly decreased energy level." K.K., September 2014 statement.

A March 2015 VA treatment note indicates that the Veteran reported an "8 month history of progressively increasing dyspnea with exertion." He noted shortness of breath when working around the house "and even some dizziness and lightheadedness" when lifting objects. See VA addendum to emergency department note dated March 13, 2015.

An April 2015 ECG revealed no evidence of cardiac hypotrophy or dilation. Estimated LVEF was 60-65 percent. VA ECG report dated April 8, 2015.

The Veteran next received a VA examination for his CAD in December 2016. During that examination, the examiner conducted an interview-based METs test. The examiner concluded that the Veteran's CAD and co-morbid conditions would result in a workload of greater than 3 but not greater than 5 METs. However, the estimated METs level due solely to the Veteran's CAD was a workload of greater than 5 but not greater than 7 METs. Associated symptoms included dyspnea. Furthermore, the examiner noted the April 2015 ECG that revealed a LVEF of 60-65 percent. The examiner also identified a May 2015 myocardial SPECT perfusion scan that revealed "average aerobic capacity for age and sex," normal sinus rhythm at rest and with stress, normal perfusion, and estimated LVEF of 65 percent post-stress. The examiner opined the April 2015 ECG and May 2015 myocardial SPECT perfusion scan "more accurately reflect how excellent his heart function is, rather than his perceived capacity to exercise and work."

In the October 2019 IHP, the Veteran's previous representative asserted that the Veteran's CAD had worsened since his last VA examination in December 2016. However, there is no supporting lay or medical evidence suggesting that the Veteran's CAD has, in fact, worsened since the December 2016 examination. In this regard, a December 2019 VA chest X-ray revealed "normal" heart size and vasculature. Finally, a September 2020 VA treatment note indicated that the Veteran's CAD resulted in "no active symptoms." VA primary care note dated September 10, 2020. As such, a further examination is not necessary to decide the claim.

The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, there is no reason to doubt the Veteran's statements regarding shortness of breath, chest pain while lifting, and dizziness/lightheadedness, or K.K.'s statements regarding the Veteran's fatiguability.

Based on the foregoing, a 30 percent initial disability rating is warranted for the service-connected CAD for the entire period on appeal. In this regard, the Veteran's CAD symptoms more closely approximate a METs workload of greater than five but not greater than 7 METs with symptoms including dyspnea, fatigue, angina, and dizziness. Notably, the December 2016 examiner concluded the estimated METs level due solely to the Veteran's CAD was a workload of greater than 5 but not greater than 7 METs. Furthermore, given that the August 2014 examiner found that it was not possible to accurately estimate the percentage of the estimated METs workload due to CAD due to the Veteran's co-morbid conditions, the whole of the estimated METs workload must be attributed to the service-connected CAD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Finally, although the August 2014 and December 2016 examiners concluded that the April 2015 ECG and May 2015 myocardial SPECT perfusion scan more accurately reflected the Veteran's level of disability, both the old and new 30 percent rating criteria specifically contemplate functional impairment as shown by METs workloads. Accordingly, the criteria for assignment of an initial disability rating of 30 percent for CAD under both the old and new rating criteria are met.

However, an initial disability rating in excess of 30 percent for the service-connected CAD is not warranted. Under the pre-amendment 38 C.F.R. § 4.104, DC 7005, a higher 60 percent rating is not warranted unless there is one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of 30 to 50 percent. Under the General Rating Formula for Diseases of the Heart, effective November 14, 2021, a higher 60 percent rating is not warranted unless a workload of 3.1-5.0 METs results in heart failure symptoms. Under the pre-amendment DC 7005, the maximum 100 percent disability rating is not warranted unless there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Under the new General Rating Formula for Diseases of the Heart, the maximum 100 percent disability rating is not warranted unless a workload of 3.0 METs or less results in heart failure symptoms.

As discussed above, at no time during the period on appeal has the Veteran's CAD, in isolation, resulted in a METs workload of greater than 3 METs but not greater than 5 METs. Furthermore, there is no evidence of chronic congestive heart failure, one episode of acute congestive heart failure in the past year or LVEF of 30 to 50 percent at any time during the period on appeal. Accordingly, the criteria for an initial disability rating in excess of 30 percent for the Veteran's CAD under either the old or new rating criteria have not been met.

TDIU

2. Entitlement to a TDIU due to service-connected disabilities.

The Veteran's representative contends that a TDIU is warranted from October 31, 2014, the date that the Veteran's disabilities "forced him to stop working." November 2021 Appellate Brief.

Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). 

In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. 

Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); and, occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).

In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation.

In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3.

The Veteran first met the schedular criteria for a TDIU on November 23, 2016. As of that date, the Veteran's service-connected disabilities PTSD, rated as 50 percent disabling, a bilateral hearing loss disability, rated as 40 percent disabling, CAD, rated as 30 percent disabling, diabetes mellitus, rated as 20 percent disabling, a deviated nasal septum, rated as noncompensable, and residuals of a left mandible fracture, rated as noncompensable. The combined disability rating is 80 percent. As the Veteran has at least one disability rated as at least 40 percent disabling and a combined rating greater than the required 70 percent, the schedular criteria for a TDIU are met as of November 23, 2016.

Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history from November 23, 2016.

The Board concludes that the Veteran has been unable to maintain substantially gainful employment due to multiple service-connected disabilities from November 23, 2016.

According to a VA Form 21-8940 Veterans Application for Increased Compensation based on Unemployability received in May 2018, the Veteran has a high school education, has an auto mechanic certificate and has taken a public relations course. He was employed full-time as an assembler in a factory from April 1995 to October 2014.

Regarding the impact of the service-connected CAD on employability, in a September 2014 statement, the Veteran stated that his work makes him short of breath and causes his chest to ache. He also noted that he had difficulty rising from the floor or lifting anything over 30 pounds; the Veteran would suffer chest pain when attempting to lift heavy weights.

A statement from the Veteran's coworker, K.K., reflects that the Veteran's work involved [d]rilling holes by hand, torqueing bolts, and simple lifting." K.K. stated that the Veteran "is easily fatigued early on during our shift" and has a "greatly decreased energy level." K.K., September 2014 statement. Similarly, a September 2014 statement from D.P., another coworker, shows that the Veteran struggled with rising from the floor and "[a]t times he has a difficulty catching his breath and he tires much faster than in the past."

Regarding the impact of the service-connected PTSD on the Veteran's employability, a January 2017 VA psychiatric examiner opined that the Veteran's psychiatric disorders, diagnosed as PTSD and depressive disorder with anxious distress, resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Symptoms at the time of examination included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Personal appearance and self-care were "somewhat disheveled." The Veteran also reported that "when he did work he generally got along with people by staying away from them" and "working by himself."

In a May 2018 letter, M.C., a VA Doctor of Nursing Practice (DNP), stated that the Veteran's psychiatric symptoms "currently impact sleep, social functioning, and vocational functioning." In particular, M.C. noted that it was "difficult" for the Veteran "to be in situations with large groups of people" due to "excessive vigilance"; as a result, the Veteran "often" avoided these situations.

A June 2018 VA psychiatric examiner concluded that the Veteran's interrelated depressive disorder with anxious distress, alcohol abuse disorder, substance abuse disorder, and PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Symptoms at the time of examination included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. During the examination, the Veteran also reported that concentration is "difficult and he can't stay focused." Mood and energy level were "down." The Veteran again appeared "mildly disheveled" during the examination.

Regarding the impact of the service-connected bilateral hearing loss disability on the Veteran's employability, a December 2016 VA examiner for the Veteran's bilateral hearing loss disability noted that the Veteran's hearing loss made work as an assembler "very challenging." Specifically, the examiner indicated that the Veteran "could not hear what parts needed checking and could not hear bosses/supervisors." The examiner concluded that the Veteran's hearing loss "would not affect physical or sedentary work" and that the Veteran's hearing aid would allow him to hear effectively "for most types of non-professional work." However, the examiner found that the Veteran's work should not include "extensive" telephone use, "groups or meetings," or "hazardous noise levels."

As noted in the Introduction, the Veteran has reported that no one will hire him due to his CAD and other disabilities. The May 2018 VA Form 21-8940 indicates that the Veteran has applied for stocker and janitorial positions.

In the November 2021 vocational opinion, L.M, M.S., Certified Rehabilitation Counselor (CRC), opined that the Veteran's service-connected disabilities would cause him to be unable to perform gainful employment consistent with his history of employment due to PTSD, CAD, and bilateral hearing loss. L.M. further opined that the Veteran would be unable to perform sedentary work because the "skills he has from his previous employment are not transferrable to other employment." L.M., vocational opinion at 8.

After considering all of the evidence of record, including the Veteran's statements and the medical evidence, the preponderance of the evidence shows that the Veteran's service-connected disabilities did preclude performance of substantially gainful employment from November 23, 2016, the date that the Veteran first met the schedular criteria for a TDIU.

Specifically, the statements by the Veteran and his coworkers, December 2016 VA audiological examination, January 2017, and June 2018 VA psychiatric examination, show diminished employability prospects due to the Veteran's service-connected disabilities. Specifically, the Veteran's physical impairments due to service-connected disabilities included fatiguability, impaired lifting, and difficulty hearing in noisy environments. Furthermore, his psychiatric impairments result in inadaptability to working in close contact with others as would be expected in a factory environment. Finally, the Veteran's work history involves physical, rather than sedentary, work.

Thus, given the lay and medical evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence shows that the Veteran was not able to maintain substantially gainful employment as of November 23, 2016. Accordingly, the assignment of a TDIU is warranted from November 23, 2016. See Geib, 77 F.3d at 1354.

REASONS FOR REMAND

1. Entitlement to a TDIU due to service-connected disabilities, to include on an extraschedular basis, for the period on appeal prior to November 23, 2016.

As noted above, the Veteran's representative contends that a TDIU is warranted from October 31, 2014, the date that the Veteran's disabilities "forced him to stop working." November 2021 Appellate Brief.

Prior to November 23, 2016, the Veteran's service-connected disabilities did not meet the criteria for a TDIU on a schedular basis. Specifically, the Veteran did not have one disability ratable as 60 percent disabling or at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent until November 23, 2016. 38 C.F.R. § 4.16(a).

However, even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b).

Prior to November 23, 2016, the Veteran's service-connected disabilities included PTSD, rated at 30 percent, CAD, rated at 30 percent, a bilateral hearing loss disability, rated at 20 percent, diabetes mellitus, rated at 20 percent, a deviated nasal septum, rated as noncompensable, and residuals of a left mandible fracture, rated as noncompensable. The combined disability rating was 70 percent.

Under present law, the Board is precluded from assigning an extraschedular TDIU in the first instance. Accordingly, the Board may only at present consider whether referral to the Director of Compensation and Pension Services (Director) for extraschedular consideration is warranted. See 38 C.F.R. § 4.16 (b); Floyd v. Brown, 9 Vet. App. 88 (1996).

Given the extensive evidence of unemployability prior to November 23, 2016 summarized in the section above, a claim for an extraschedular TDIU should be referred to the Director for consideration of entitlement to a TDIU prior to November 23, 2016 under the provisions of 38 C.F.R. § 4.16(b).

The matters are REMANDED for the following action:

1. Refer a claim for entitlement to a TDIU prior to November 23, 2016 to the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis prior to November 23, 2016.

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.