Citation Nr: 21076843 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 07-24 370 DATE: December 28, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from May 31, 2007, to March 6, 2009, is granted. Entitlement to a TDIU due to service-connected disabilities for the appeal period prior to May 31, 2007, is denied. FINDINGS OF FACT 1. From May 31, 2007, to March 6, 2009, the evidence is in equipoise as to whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment consistent with his education and work history. 2. For the appeal period prior to May 31, 2007, the Veteran's service-connected disabilities are not shown to have precluded him from obtaining or maintaining substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. From May 31, 2007, to March 6, 2009, 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, 4.1, 4.3, 4.16. 2. For the appeal period prior to May 31, 2007, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 33.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to December 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, May 2015, September 2017, May 2020, and July 2021, the Board remanded the appeal to the RO for further development. As an initial matter, the Board notes that in an October 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for atrioventricular nodal reentry tachycardia (AVNRT). As this is considered a full grant of the issue of service connection sought on appeal, the issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to a TDIU due to service-connected disabilities for the appeal period prior to March 6, 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). 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). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of the service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. 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). 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). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual 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. 38 C.F.R. § 4.16(a). However, marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period prior to March 6, 2009, the Veteran is service-connected for (1) hypothyroidism (rated as 30 percent disabling from February 16, 2006, and prior to April 30, 2009); (2) obstructive sleep apnea (rated as 50 percent disabling from December 29, 2006); (3) Schatzki's ring of the lower esophagus (rated as 30 percent disabling from February 2, 2009); (4) left knee degenerative joint disease (rated as 10 percent disabling from January 23, 2007); (5) AVNRT (rated as 10 percent disabling from January 23, 2007); (6) non-hodgkin's lymphoma of the right tonsil (rated as noncompensable (zero percent) from May 12, 1989); and (7) an asymptomatic shrapnel wound of the mid to distal one third of the right forearm (rated as noncompensable from May 12, 1989). The Veteran is in receipt of a combined 30 percent rating from February 16, 2006, a 70 percent rating from December 29, 2006, and an 80 percent rating from February 2, 2009. As such, the Veteran meets the schedular rating for a TDIU for the period from December 29, 2006. Turning to the evidence of record, the Veteran has a high school education. See September 2015 VA Form 21-8940. The evidence also reflects that after his discharge from service, he worked in landscaping with his Uncle's business and thereafter worked as a freight handler/truck driver for approximately thirteen to sixteen years prior to his retirement. See e.g., December 2008 VA psychology consultation and February 2017 PTSD examination. He retired from this position with Yellow Freight Transportation on May 31, 2007. See September 2007 VA thyroid and parathyroid diseases examination; see also June 2007 VA treatment record (reflecting the Veteran retired on May 31st and feels fatigued in the afternoon); and September 2015 VA Form 21-8940 (reflecting that the Veteran reported last working in May 2007 and that he became too disabled to work on this date). The Veteran reports that he medically retired for various health-related concerns, to include because of his service-connected lymphoma and associated treatment as well as weakened shoulder muscles. See December 2008 VA psychology consultation. He also reported that he stopped working because of his posttraumatic stress disorder (PTSD) as he experienced nightmares and extreme anxiety, which made him tired and unable to completely function at work. See September 2015 VA Form 21-8940. Additionally, at the November 2008 Board hearing, he testified that he retired early because he could no longer perform the lifting requirements with his employment. See November 2008 Board hearing transcript, p. 10. At that hearing, his spouse clarified that he no longer had the strength that his job required. See id. Moreover, during the May 2013 VA examinations, he explained that he retired in 2007 because he could not work anymore due to his heart issue, energy level, and blood pressure, explaining that at that time he was experiencing a lot of heart problems. The Board notes that for the appeal period prior to March 6, 2009, the Veteran is not service connected for PTSD nor any shoulder disorders but that he is service connected, among other conditions, for obstructive sleep apnea, AVNRT, and non-hodgkin's lymphoma. The Veteran maintains that that his service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment. Review of the evidence of record indicates that he has not obtained a full-time employment position since his retirement. In support of his claim, the Veteran submitted statements from former co-workers noting that the Veteran had functional impairments due to his medical conditions when he was working. For example, an August 2007 statement from the Veteran's co-worker, who had worked with the Veteran for over a decade, noted that he had witnessed the Veteran's health problems on several occasions, to include an incident at work where the Veteran told him he had to stop unloading trailers because his heart was racing, his chest hurt, and because he felt dizzy. His former co-worker explained that this episode lasted well over an hour and that over the years, the Veteran would continue to have these attacks even though the Veteran would pass his Department of Transportation examinations. Likewise, in September 2007, the Veteran's former manager submitted a statement noting that in the few years leading up to the Veteran's retirement, the Veteran complained, on a few occasions, of having pain in his chest and shoulders to the point where he said it hurt to put his seatbelt on and that he had noted a few times where the Veteran's heart was racing while performing his work duties. The Board notes that although his manager indicated in this statement that the Veteran retired in March 2007, the other evidence of record, as cited above and including the Veteran's reports on his TDIU application (VA Form 21-8940), reflect that he retired in May 2007. Additionally, although the evidence, including the Veteran's reports, shows that for this appeal period, the Veteran's non-service-connected disabilities (such as his psychiatric disorder and shoulder disorders) impacted his employment, the medical records corroborate that the Veteran experienced functional limitations due to his service-connected disabilities. For example, a December 2006 private treatment record reflects that over the last two years, the Veteran had major difficulty with awakening at night, sleep disruption, and daytime fatigue while a corresponding December 2006 polysomnogram indicates that the Veteran had moderate obstructive sleep apnea. Shortly thereafter, a VA treatment records reflect that the Veteran's service-connected left knee condition resulted in pain and limited range of motion. See July 2007 VA treatment record. Indeed, a December 2008 VA treatment record shows that the Veteran had severe left knee degenerative joint disease and that physical training had not helped his condition. Significantly, at an October 2007 VA cardiology consultation, the Veteran reported experiencing a fast heart rate where he felt weak and dizzy. He explained that these episodes were increasing in frequency and lasting longer, to include for up to a few hours. He also reported that tests were ordered because he was told by his employer that he could not drive a truck with these episodes. A November 2007 VA cardiology notation, cited in the May 2013 VA examination, further reflects that the Veteran had a ten-to-fifteen-year history of palpitations with associated chest pressure, shortness of breath, and light-headedness but that the episodes had grown more frequent. The Veteran also underwent multiple VA examinations, which reflect various occupational limitations due to his service-connected disabilities. For instance, shortly after the appeal period, an April 2009 VA heart examination reflects that the Veteran's heart disorder had significant occupational effects and that the disorder resulted in vision difficulty, lack of stamina, and weakness or fatigue. In this regard, the examiner noted that if the Veteran experienced his heart racing while driving, he could get blurred vision impacting his ability to drive his truck. His condition also had severe effects on his ability to exercise. A November 2009 VA esophagus examination, shortly after the appeal period, also reflects that the Veteran's service connected Schatzki ring of the lower esophagus had significant effects on his occupational activities with pain and that the discomfort he felt affected his ability to do his job. This service-connected disability was also noted to severely effect his ability to exercise. At the May 2013 VA knee examination, the Veteran reported that since he fell in 2007, his left knee flared probably once every six months and that he sometimes used a cane to take the pressure off. Additionally, the March 2021 VA sleep apnea examination reflects that his sleep apnea impacts his ability to work and that when the Veteran was a truck driver, he took breaks often in order to not fall asleep. In light of the foregoing, and given the Veteran's educational and vocational background, the Board finds that the evidence of record is in equipoise as to whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment from May 31, 2007, the day the evidence shows that the Veteran retired and stopped working full time. In this regard, the Veteran has consistently reported that he had to retire due to medical reasons, in part, from his service-connected disabilities. While the evidence shows that his non-service-connected disabilities impaired his employment, the medical documentation of record also indicates that his service-connected disabilities alone are a major barrier to employment. For instance, the medical evidence and lay statements reflect that both the Veteran's service connected AVNRT and obstructive sleep apnea impeded work productivity as these disabilities resulted in the need to take prolonged breaks. Indeed, statements from the Veteran's former co-workers attest to incidents where the Veteran had to stop performing his work duties because his heart was racing. Additionally, following his retirement, the evidence shows that the Veteran's service-connected heart disorder manifested in a lack of stamina, fatigue, and light-headedness, which would affect his ability to perform work requiring physical labor. Moreover, his service-connected left knee disability affected his range of motion and manifested in pain while his Schatzki's ring of the lower esophagus, which was service connected in February 2009, also manifested in pain that had significant effects on his usual occupational activities. This evidence also suggests that these service-connected disabilities would affect his ability to perform physical labor type positions. As such, the medical evidence of record indicates that the Veteran's physical challenges associated with these service-connected disabilities prevented him from performing all the requirements of employment at his job that he was once able to do and ultimately contributed to his retirement. Consequently, the Board concludes that for the appeal period following his retirement, his service-connected disabilities prevented him from performing the requirements of employment in his prior field as he was no longer able to perform the physical duties of his job. To the degree that the Veteran would be able to perform work in a different profession, the Board finds that from a practical standpoint, the Veteran would be too limited to perform such alternative occupations in light of his educational and vocational background in more physical labor-type jobs. Moreover, his daytime fatigue from his obstructive sleep apnea and fatigue and light-headedness from his AVNRT would also impair his ability to work productively and maintain work deadlines. Accordingly, the totality of the Veteran's service-connected disabilities indicate that the Veteran would be significantly impeded in workplace productivity. While no individual service-connected disability may have rendered the Veteran unemployable by itself, the evidence suggests that when considering the service-connected disabilities together, the evidence is in equipoise as to whether the Veteran would be unable to maintain gainful employment from May 31, 2007. Therefore, the Board finds that entitlement to a TDIU is warranted from May 31, 2007, the day the evidence reflects that the Veteran retired and stopped working, to March 6, 2009. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, the Board finds that for the period prior to May 31, 2007, the evidence shows that the Veteran was able to obtain and maintain employment, that was more than marginal, for nearly the entire appeal period. In this regard, the evidence shows that the Veteran worked full time at the same company for over a decade prior to that date. Based on his reported income, and the lack of an indication that he was working in a protected environment, the Board finds that such employment is more than marginal in nature. As the Veteran has been gainfully employed, the Board finds that at no point during the period on appeal prior to May 31, 2007, did the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history nor is there sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and work history. Indeed, the evidence indicates that the Veteran was capable of obtaining and maintaining substantially gainful employment. The Board emphasizes that the Veteran has never explicitly alleged that he has been unable to secure and follow substantially gainful employment as a result of his service-connected disabilities prior to his retirement date. Although the Veteran experienced occupational impairments as due to his service-connected disabilities, the Veteran was able to perform the physical and mental activities required by his occupation and maintained his last employment until he retired. To the extent that his service-connected disabilities affected his employability, the schedular ratings assigned for his various disabilities compensate him for such impairment. Indeed, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Thus, for the period prior to May 31, 2007, entitlement to a TDIU is not warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.