Citation Nr: 21006911 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-59 221 DATE: February 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 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 April 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2017 by a Department of Veterans Affairs (VA) Regional Office, which denied entitlement to TDIU. This claim was previously before the Board in July 2020, at which time it was remanded for further development, to include obtaining an opinion regarding his unemployability. Such was obtained in November 2020; thus, the Board finds that there has been substantial compliance with the instructions of its remand. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that he is unable to work due to his service-connected disabilities and seeks a TDIU. 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; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry in a TDIU claim 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). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for Veterans Claims has defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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. VA regulations provide that if a veteran seeks TDIU based on a single disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, service connection is in effect for coronary artery disease (CAD), rated at 30 percent; right lower extremity peripheral vascular disease rated at 20 percent; left leg amputation below the knee rated at 40 percent; and left lower extremity peripheral vascular disease, as due to CAD, scar associated with CAD, and bilateral hearing loss, each rated as noncompensable. These ratings total 70 percent and have been in effect for the entirety of the appeal period; thus, the Veteran at all times has met the schedular criteria for TDIU. The record shows that the Veteran is a law school graduate who worked from 1970 to 2007 as a self-employed attorney. He asserts that he stopped working due to his service-connected CAD. In 2012, the Veteran volunteered to work as a real estate agent, for a business run by his wife’s family. Although he initially worked 25 hours a week in this unpaid position, by 2014 he was only able to work for approximately 5 hours a week, due to the symptoms of CAD (such as shortness of breath), as well as the difficulties with ambulation due to his amputation. The Veteran asserts that he would not have been able to work in this role, limited as it was, without the concessions granted him by his employers, his wife’s family. In May 2019, the Veteran underwent a VA amputations examination. At that time, the examining physician noted that the Veteran’s left leg amputation would impact his ability to work, in that he would not be able to stand for prolonged periods of time, walk or climb stairs. Similarly, the VA examiner found in a concurrent examination of the Veteran’s vascular system that his bilateral lower extremity peripheral vascular disease would result in the same limitations on working. An opinion was obtained in November 2020. At that time, a VA physician reviewed the record and determined that the Veteran’s left leg amputation would render him unable to seek and maintain substantially gainful physical employment; however, he would not be prevented from performing the tasks inherent in sedentary employment. As for the Veteran’s peripheral vascular disease and CAD, similar findings were made. Although the Veteran would be unable to perform physical labor, he would be able to work in a sedentary setting, despite his vascular disease and CAD. The Board notes that medical examiners are only responsible for providing a full description of the effects of disability upon a veteran’s ordinary activity. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that a TDIU is warranted. The Veteran’s disabilities have rendered him incapable of substantial gainful employment. This finding is supported by the fact that the when the Veteran did, in fact, attempt to work—by volunteering to help out his wife’s family at their real estate business—he was ultimately unable to work for more than 5 hours a week due to the limitations imposed by CAD and his left leg amputation. Therefore, despite the assertion by the November 2020 examiner that the Veteran would be capable of sedentary work, the Board finds that the symptoms of his service-connected disabilities would prevent such. Thus, the Board finds that the Veteran is unable to secure and follow substantially gainful employment due solely to his service-connected disabilities, and a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.