Citation Nr: A21020202 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190625-12270 DATE: December 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected heart disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision. In a June 2019 VA Form 10182, the Veteran requested Direct Review of the June 2019 rating decision under the Veterans Appeals Improvement Modernization Act of 2017 (AMA). In July 2020, the Board denied the claim for entitlement to TDIU. In a June 2021 Order, pursuant to the June 2021 Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) vacated the Board's June 2020 decision and remanded back to the Board the issue of entitlement to TDIU. In the JMR, the parties agreed that in denying TDIU, the Board did not relate the Veteran's educational level, prior vocational history, and work experience to the physical and mental limitations caused by his service-connected disabilities or explain its application of the principles of substantially gainful employment and sedentary work. Furthermore, the Board failed to adequately explain why it found that the Veteran is capable of performing sedentary work that does not involve significant physical exertion, in light of the Veteran's symptoms of chest pain experienced absent any significant physical exertion. The claim for entitlement to TDIU is now returned before the Board. Although entitlement to TDIU is being granted in this decision, the grant does not encompass the entire period on appeal. As a result, the issue remains before the Board and has been characterized accordingly. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. The Veteran reports that he was last employed in January 2008. See TDIU Application. He reported that his heart disability had affected his full-time employment, he had last worked full-time, and became too disabled to work in January 2008. He had been under a doctor's care since January 2010 due to heart disease. He had worked for Chrysler Corporation Assembly plant from 1965 to January 2008 as a mill wright. He had 3 years of college education but no further education or training since becoming too disabled to work. A total rating for compensation purposes 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). In this case, the Veteran has been in receipt of a 60 percent evaluation for ischemic heart disease since August 10, 2017. See November 2020 Rating Codesheet. Thus, the Veteran has met the schedular criteria for a TDIU. Based on the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected heart disability. The Veteran's prior vocational history and work experiences consist of technical certificates in fuel injection and turbochargers and engine repair, and is devoid of any clerical employment or skills. In addition, in his application for TDIU, the Veteran listed his work history as working from July 1965 to January 2008 as a mill wright for Chrysler Corporation Assembly Plant. The Veteran has reported experiencing pain associated with his cardiac condition, even when he had not applied a significant amount of physical exertion and even when he is at rest. See May 2015 Emergency Department Physician Note from St. Luke's Hospital; January 2008 private medical record; September 2008 private medical record; November 2008 Social Security Administration Disability record. For example, in a May 2015 private medical record, he reported chest pain while he was watching television. Moreover, in a May 2019 private medical opinion from Dr. J. A., Dr. J. A. opined that as the Veteran's treatment provider for many years, it is his opinion that the Veteran, having had two open heart surgeries, multiple coronary angioplasties and stents, has been rendered totally and permanently disabled for many years. Based on the Veteran's prior employment history that consisted of working in a factory for over 40 years but apparently never holding a clerical position, and moreover, the Veteran's inability to perform even sedentary work or work that does not involve significant physical exertion due to the Veteran's heart-related symptoms such as chest pain, along with the Veteran's credible lay statements as to the symptomatology of his service-connected heart disability, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by means of his service-connected heart disability. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to TDIU is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.