Citation Nr: 21006236 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-34 437 DATE: February 3, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), since October 8, 2018, is granted. REMANDED Entitlement to TDIU, prior to September 8, 2014, is remanded. FINDING OF FACT Since October 8, 2018, the evidence shows that the Veteran’s service-connected disabilities are at least as likely as not preclude the ability to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU, since October 8, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2017. In March 2018 and September 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU, since October 8, 2018, is granted. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, supra. TDIU may be assigned when the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran’s claim for TDIU was found to be raised by the record, as due to his service-connected ischemic heart disease (IHD) disability, and part and parcel of his increased rating claim. At his March 2017 Travel Board hearing, the Veteran’s son noted that it was difficult for the Veteran to walk longer distances, harder for him to do activities with the grandkids and that he could notice a decrease in the Veteran’s physical abilities and how much he could do without getting tired. As his claim for a higher evaluation for his service-connected IHD was initiated on November 17, 2011, the Board had established, in its September 2019 remand, that the Veteran’s TDIU claim was part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, during the relevant appeal period, the Board notes that the Veteran is in receipt of a 100 percent schedular evaluation for IHD, his primary service-connected disability for which he has claimed unemployability, from September 8, 2014 to October 7, 2018. Therefore, entitlement to a TDIU during that period is moot. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Thus, the relevant appeal period consists of the periods from November 17, 2011 to September 7, 2014, and from October 8, 2018 to present. As noted above, the time period prior to September 2014 will be discussed in the remand portion below. Additionally, the Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) due to the loss of use of a creative organ since July 18, 2017. Since October 8, 2018, the Veteran has been service-connected for: IHD, rated as 60 percent disabling; diabetes mellitus (DM), rated as 40 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; a right eye disability, rated as noncompensable; and an erectile dysfunction disability, rated as noncompensable. His combined evaluation for compensation purposes was 80 percent. The Veteran meets the minimum schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). The October 2018 VA heart conditions examiner noted that the Veteran’s enhanced fatigue, decreased endurance, shortness of breath, and difficulty breathing, with any vigorous exertion, would significantly reduce the ability to perform tasks. The VA examiner also noted that the Veteran had reported previous occupations of brick and mortar work and furniture delivery, both estimated at 8 METs. Both occupations exceeded the current MET restrictions (greater than 3-5 METs), and were likely to cause fatigue and angina, and place the Veteran at an increased risk for another myocardial infarction. The VA examiner also stated that the Veteran would likely experience enhanced fatigue, decreased endurance, shortness of breath, and difficulty breathing with any vigorous exertion, which would significantly reduce his ability to perform tasks. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the finding that the Veteran’s service-connected disabilities, particularly to include IHD, prevent him from securing or following substantially gainful employment. From the VA examination report which indicates the Veteran’s former employment as brick and mortar work and furniture delivery, and the lay statements, the Board finds that there is sufficient evidence to ascertain that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, to include IHD, since October 8, 2018. Accordingly, TDIU is granted, since October 8, 2018, under 38 C.F.R. § 4.16(a). REASONS FOR REMAND Entitlement to TDIU, prior to September 8, 2014, is remanded. Prior to September 8, 2014, the Veteran was service-connected for: IHD, rated as 10 percent disabling and DM, rated as 10 percent disabling, prior to May 15, 2013 and as 20 percent disabling thereafter; 20 percent. His combined evaluation for compensation purposes was 20 percent disabling, prior to May 15, 2013, as 30 percent disabling thereafter. Thus, the Veteran does not meet the threshold schedular requirement for consideration for an award of TDIU benefits under 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to VA’s Director of Compensation and Pension Service for extraschedular consideration. The Board is prohibited from granting an award of a TDIU under 38 C.F.R. § 4.16(b) in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The evidence of record, notably the July 2012 VA heart examination report indicating significant impacts on work due to a heart condition and the Veteran’s August 2012 Notice of Disagreement, leads the Board to determine that the RO must first refer the claim for TDIU on an extraschedular basis to the Director of VA’s Compensation Service to determine whether the Veteran is entitled to an extraschedular TDIU rating prior to September 8, 2014, under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the case to the Director of VA’s Compensation Service for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted during the period prior to September 8, 2014. All resultant documentation must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.