Citation Nr: 21007141 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-53 227 DATE: February 8, 2021 ORDER For the period prior to December 16, 2015, a total disability rating based on individual unemployability (TDIU), is granted, effective September 16, 2011. FINDING OF FACT The Veteran has been precluded from obtaining or maintaining substantially gainful employment due to his service-connected heart and psychiatric disabilities since September 16, 2011. CONCLUSION OF LAW For the period prior to December 16, 2015, the criteria for a TDIU were met, effective September 16, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1980 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. In January 2019, the Board issued a decision that, in pertinent part, denied entitlement to a TDIU for the period prior to December 16, 2015. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court), which, pursuant to a June 2020 Joint Motion for Partial Remand (JMR) vacated the January 2019 denial of a TDIU for the period prior to December 16, 2015, and remanded the issue to the Board for action consistent with the JMR. Here, by way of an October 2016 rating decision, the Veteran was granted a TDIU effective December 16, 2015. He contends that an earlier effective date for that award is warranted, as he was unable to obtain or maintain gainful employment as a result of his service-connected heart and psychiatric disabilities prior to that date. Following a review of the record, the Board agrees and finds that a TDIU is warranted, effective September 16, 2011, the date of receipt of the underlying claims of entitlement to increased ratings for heart and psychiatric disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It is the established policy of VA that all veterans who are unable to secure and follow a 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), 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). As a preliminary matter, the Board notes that, for the period prior to December 16, 2015, the schedular criteria for a TDIU were met, as the Veteran was rated as 70 percent disabled based on his service-connected psychiatric disorder and had a combined disability rating of 80 percent since the September 16, 2011 date of claim. 38 C.F.R. § 4.16(a). The remaining issue, then, is whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation prior to December 16, 2015. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability prior to December 16, 2015, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Following a review of the record, the Board finds that they were. The record supports that the Veteran has not been gainfully employed during the period since filing his September 2011 claims for increased ratings, has a limited education, and has a specialized work history. Specifically, the record shows that the Veteran completed one year of college and last worked full time in 2008. See May 2012 VA Form 21-8940, March 2013 VA Form 21-4192. Additionally, up until his employment was terminated in 2008, his in-service and post service work history consisted primarily of work in marine engineering as either an engineer or technician. Id. The record also supports that the Veteran’s service-connected heart disability interfered with his work performance both during and since service. Initially, the Veteran’s statements, as well as service records and Social Security Administration (SSA) disability records, support that the nature of the Veteran’s work was physical and required periods of time at sea. However due to physical limitations caused by his heart condition, and his need for frequent treatment, it became increasingly difficult for him to perform his job. For example, service treatment records (STRs) show that in February 1989, the Veteran was noted to have CAD and an adjustment disorder that rendered him “handicapped in that he [wa]s unable to sustain activity of any duration or intensity.” He was placed on limited duty ashore to allow him to receive monthly medical care and was not allowed shipboard assignments, physical fitness training, or heavy exertion. Post service, the Veteran continued to require treatment for his chronic heart disability, and underwent a number of heart procedures, including bypass graft surgeries and stent placements. He was noted at various times to have anginal symptoms, fatigue, chest pain, chest pressure, and/or shortness of breath with exertion related to his heart condition. See, e.g. June 2009 Private Treatment Notes; January 2010 Physical Residual Functional Capacity Questionnaire. As early as September 1994, during a VA examination, he reported exertional chest pain and two episodes of angina per week provoked by physical activity. More recently, in an October 2008 statement, the Veteran reported the recent placement of five stents and having had a heart attack during the procedure. He also competently reported that since the stent placements, he was constantly tired and would get angina with any exertion. During a May 2009 VA examination, the Veteran reported that he retired from his job in June 2008 due to his heart disability. Of note, the examiner found that the Veteran’s lack of stamina, weakness, and/or fatigue caused by his heart condition had significant effects on his usual occupation. Moreover, it was noted that because of his stents, the Veteran was not allowed to go to sea aboard a ship. In January 2010, a private physician indicated that the Veteran had fatigue secondary to heart disease and could not do any activity secondary to angina. Even after retirement from work and stent placements in 2008, the Veteran’s heart condition progressed and he developed syncope, underwent additional catheterization, and required hospitalization. See, e.g., December 2012 Private Cardiac Treatment Records. Additionally, the record shows that, prior to December 2015, the Veteran was treated for his service-connected depressive disorder, including during psychiatric hospitalizations in 2011 and 2013. A private examiner also submitted a report following examination of the Veteran in December 2015 indicating that due to his psychiatric symptoms, alone, he would miss several days of work per month, would need to leave early several days per month, and would have difficulty with concentration and anger. On the specific issue of employability, the Board finds the most probative evidence to be a September 2020 private vocational assessment and opinion concluding that the Veteran was precluded from securing and following a substantially gainful employment since 2008 (when he last worked full time) due to his service-connected heart and psychiatric disabilities. The opinion was offered by a vocational expert (VE) who discussed clinical findings supportive of physical and mental impairments and found that such impairments would preclude the Veteran’s usual employment in marine engineering, which was highly skilled work. She discussed lay and medical evidence of record supporting that the Veteran’s heart condition interfered with his physical functioning due to fatigue and angina, and also noted that those symptoms also would impair his ability to attend to work and stay on task. She explained that the Veteran’s mental impairments would impact his social functioning and ability to do detailed work. Notably, the September 2020 VE also found that the Veteran’s need to miss work, take breaks, or leave early due to his heart or psychiatric symptoms or treatment, would adversely impact his ability to maintain the type of employment he might be capable of doing. Thus, even if the Veteran was physically capable of performing light or sedentary work, his mental impairments and his need to miss work would interfere with his ability to perform that work in a competitive work environment. In other words, the VE found that the combination of mental and physical limitations due to his heart and psychiatric disabilities would eliminate even sedentary and unskilled work. Accordingly, considering the Veteran’s work history and education, the VE found that the Veteran’s heart and psychiatric disabilities precluded gainful employment. The September 2020 private opinion was based on a review of the claims file and was supported by a thorough and detailed rationale that considered the Veteran’s work history and educational level, cited to literature in support of the conclusions offered, and also addressed evidence weighing both for and against the Veteran’s claim. Of particular note, the VE addressed the prior VA opinions of record suggesting that, despite his heart or psychiatric disability, the Veteran was capable of sedentary employment or light work. However, the VE noted that, while physicians are capable of assuming that a person can perform certain tasks, the actual implication and impact of limitations on the occupational capacities in a competitive workplace is not within their area of expertise and is uniquely suited for a vocational expert. The Board further notes that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds the VE’s reasoning for why her vocational opinion is more probative than those of the VA examiners to be persuasive, and accords great weight to her opinion, particularly given her expert qualification as a certified vocational evaluator. Thus, the Board concludes that the Veteran’s heart and psychiatric disabilities precluded physical employment and that, even if the Veteran was physically capable of performing sedentary employment prior to December 2015, he lacked the education, training, or skills necessary to obtain or follow gainful sedentary employment. Accordingly, the Board finds that the competent and probative evidence, when viewed with the record as a whole, is at least in equipoise with respect to the issue of whether the Veteran was unemployable due to the effects of his service-connected heart and psychiatric disabilities during the period prior to December 16, 2015. Therefore, a TDIU is granted, effective September 16, 2011, the date of receipt of the underlying claims for increased ratings. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.