Citation Nr: 21076603 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-16 094 DATE: December 27, 2021 ORDER For the entirety of the rating period on appeal, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected coronary artery disease (CAD), status-post myocardial infarction, status-post stent, status-post implanted pacemaker, prevents him from obtaining and/or maintaining substantially gainful employment. CONCLUSION OF LAW For the entirety of the rating period on appeal, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A Board video-conference hearing was held in July 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Pertinent Laws and Regulations - TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his or her disability makes it difficult to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that the veteran is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Analysis The Veteran is service connected for CAD, status-post myocardial infarction, status-post stent, status-post implanted pacemaker, rated 60 percent disabling from June 28, 2012; bilateral hearing loss, rated 10 percent disabling from June 28, 2013; bilateral tinnitus, rated 10 percent disabling from June 28, 2013; and scar, status-post implanted pacemaker associated with CAD, status-post myocardial infarction, status post stent, status post implanted pacemaker, which has been assigned a noncompensable rating. The Veteran met the schedular criteria for a TDIU on June 28, 2012 because at that time, the only disability that was service connected was rated 60 percent. The Veteran asserts that his service-connected CAD has precluded him from securing and following a substantially gainful occupation during the period on appeal. According to an August 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, the Veteran reported he was prevented from securing substantially gainful employment by reason of his heart disability; he last worked full time in November 2002 and left employment due to his disability; and completed two years of college. It was also noted therein that he was a supervisor for the state fish hatchery before his first heart attack, and thereafter, it became more and more difficulty for him to perform his duties. In the hearing, he testified that he worked for the state fish hatchery for 33 years. See July 2021 Hearing Transcript, page 6. The Veteran was provided a VA compensation examination to determine the severity of his CAD in July 2014. The examiner noted that his interview-based metabolic equivalents of tasks (METs) testing revealed METs level greater than 5-7 METs due to dyspnea. Greater than 5-7 METs has been found to be consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn with a push mower, and heavy yard work. The examiner noted the CAD did not impact his ability to work. The Veteran submitted letters from two private physicians. In a January 2015 letter, J.E.R. M.D., FACC, a physician associated with Traverse Heart & Vascular, stated that the Veteran is disabled due to syncope and peripheral vascular disease, and a previous diagnosis of mesenteric ischemia. In another January 2015 letter, T.R.W. D.O., PhD, stated that the Veteran would not qualify for gainful employment of any type nor be able to complete the tasks associated with gainful employment, noting the severity of the 70 percent combined disability rating assigned by VA. Another VA compensation examination was provided in February 2017. The examiner opined that the Veteran's cardiac METs level was greater than 5-7 METs and found his CAD did not impact his ability to work. In April 2017, a private disability benefits questionnaire (DBQ) completed by another cardiologist, Dr. K.C., noted that an interview-METs test revealed METs level greater than 3-5 METs due to dyspnea and dizziness. He noted on the DBQ that it was unclear whether the limitation was due to the lung disease or heart disease and the recent stress test did not show ischemia, but the Veteran could only walk two minutes on brace protocol due to shortness of breath and dizziness. In December 2017 private cardiac catherization procedure notes, Dr. K.C. noted a history of lifestyle-limiting angina, despite maximum medical therapy. Another VA compensation examination was conducted in January 2018. Based on interview METs testing, the examiner found the Veteran's METs level was greater than 7-10 due solely to the heart disability, and greater than 5-7 METs with the addition of his respiratory disabilities. The examiner also concluded the heart disability did not impact his ability to work. The most recent VA compensation examination was conducted in October 2020. Based on an interview-METs test, due to the Veteran's dyspnea, the examiner estimated METs level to be greater than 3-5 METs, which has been found to be consistent with activities such as light yard work, mowing the lawn with a power mower, and brisk walking. In regard to the impact on employment, the examiner noted the Veteran gets short of breath when he exerts himself, making it hard to do even simple physical labor. In July 2021, the Veteran testified that, "At home, if I have to walk up and down stairs more than once I have to sit down because of the tightness in my chest." He also testified that while the tightness usually subsides in two minutes, often he must use medication to treat the symptoms. See July 2021 Hearing Transcript, page 4. In addition to physical activity, the Veteran testified that he is on the Board of Review for taxes in his local township and two or three times during the review he must use medication to treat his symptoms because the workload and stress of having to make decisions causes his symptoms to manifest. He also testified that in his last employment working for the state, he would have to go outside to get away from his coworkers because the stress level increased. Id. at page 6. After careful consideration of the record, the Board finds that entitlement to a TDIU is warranted for the entirety of the appeal period. As reflected above, the Veteran's CAD has been productive of symptoms such angina, fatigue, and shortness of breath. He has competently and credibly reported shortness of breath and difficultly walking. Indeed, Dr. K.C. stated that the Veteran was limited to two minutes of walking during a stress test and the October 2020 VA examiner noted the Veteran had shortness of breath upon exertion, which made even simple physical labor hard to do. Moreover, the Veteran testified that a mere increase in stress could cause chest tightness. See July 2021 Hearing Transcript, page 6. The Veteran's primary job after service included working as a fishery tech supervisor for 33 years, which reasonably included desk work and some on-site visits. As indicated, two private doctors opined that the Veteran is too disabled to work due to his heart problems and the 2020 VA examiner stated that the Veteran's CAD prevents him from doing even simple labor. The Board finds that all of the relevant medical opinions of record are competent and carry some probative weight. While recognizing that further rationale from both the VA and the private treating doctors could be requested, the Board resolves any reasonable doubt in the Veteran's favor and concludes that the symptoms of his CAD have precluded him from working the type of jobs that are consistent with his educational background and work experience. Moreover, while there was some question as to whether the Veteran's prior association with his local township constituted gainful employment, he explained that his participation included nothing more than one to four meetings a year depending on his assigned committees. See January 2015 Notice of Disagreement. Based on this information, the Board finds the Veteran's activity with local committees was intermittent and did not result in substantially gainful employment. In sum, the Board concludes that the Veteran's service-connected CAD more likely than not prevents him from working in a substantially gainful position. Therefore, the appeal seeking a TDIU is granted. 38 C.F.R. § 4.16. Pursuant to 38 U.S.C. § 1114(s), special monthly compensation (SMC) is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i). Here, the award of a TDIU is based solely on the Veteran's service-connected CAD, it is considered a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes. However, the Veteran is not in receipt of a combined rating of at least 60 percent disability rating for his other service-connected disabilities during the appeal period. Accordingly, the Veteran does not meet the criteria for SMC. 38 U.S.C. § 1114(s)(1). (Continued on the next page) Finally, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.