Citation Nr: 21007574 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-06 643 DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities during the period on appeal prior to May 4, 2017 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude him from securing and maintaining a substantially gainful occupation during the period on appeal prior to May 4, 2017. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met for the period on appeal prior to May 4, 2017. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from September 1966 to April 1970. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD), and the TDIU issue was part of the appeal (see discussion below). The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in March 2017, and a copy of the hearing transcript is of record. He was advised via a December 30, 2020 letter that the VLJ who conducted that hearing was no longer available to decide his case, and he was given 30 days to advise the Board if he wanted another hearing. Since he has not responded, the Board will proceed to adjudicate this appeal and has considered the 2017 hearing transcript as part of the evidence. This matter was first before the Board in September 2017. In the September 2017 Board decision, the Board observed that the issue of entitlement to a TDIU had arisen at the March 2017 Board hearing as part of the underlying appeal for a higher rating. See Rice v. Shinseki, 22 Vet. App.447, 453-54 (2009). The Board remanded the issue of entitlement to a TDIU in order to provide the Veteran with the proper notification of how to substantiate the claim. In March 2018, VA sent the Veteran a letter notifying him of what is needed to substantiate a TDIU claim. VA requested that he submit his response(s) to this letter, including any relevant forms, within 30 days. The Veteran did not do so. After the April 2018 SSOC, the matter was returned to the Board in August 2018, at which time the Board remanded the matter again. The Board observed that, although the Veteran was service-connected for disabilities of posttraumatic stress disorder (PTSD) and ischemic heart disease, the April 2018 SSOC had only discussed the Veteran’s entitlement to a TDIU in relation to his PTSD disability. That is, the April 2018 SSOC did not address the impact of the Veteran’s ischemic heart disease on his ability to work, nor did it consider whether the Veteran was unemployable due to his service-connected disabilities collectively. Thus, the Board remanded the matter to readjudicate the issue of entitlement to a TDIU, taking into account all of the Veteran’s service-connected disabilities. In November 2018, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU application), as well as a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefit. In a June 2019 rating decision, the RO granted the Veteran TDIU effective May 4, 2017, which was the date the Veteran met the schedular evaluation criteria and from which the RO found that the evidence showed the Veteran was unable to obtain and maintain substantially gainful employment due to service-connected disabilities. The case was returned to the Board in March 2020. In the March 2020 Board decision, the Board observed that the June 2019 rating decision did not address the issue of a TDIU for the period on appeal prior to May 4, 2017. The Board noted that the period on appeal goes back as far as March 23, 2009, which was the effective date for the initial award of a 30 percent rating for the Veteran’s service-connected PTSD disability. The Board observed that the June 2019 rating decision contained no discussion of whether the issue of a TDIU prior to May 4, 2017 on an extraschedular basis should be referred to the Director of the VA Compensation and Pension Service for initial consideration, and it did not otherwise discuss whether an extraschedular TDIU is warranted for the initial period on appeal. The Board stated that SSOCs from June 2019 and September 2019 did not correct this failure. Thus, in the March 2020 Board decision, the Board remanded the case in order to adjudicate the issue of entitlement to a TDIU during the period on appeal prior to May 4, 2017 under 38 C.F.R. § 4.16(b). On April 1, 2020, the Director of the VA Compensation Services issued an advisory opinion concerning whether the Veteran was entitled to a TDIU during the period on appeal prior to May 4, 2017. The RO then readjudicated the issue in an April 3, 2020 SSOC, and it discussed whether the Veteran is entitled to an extraschedular TDIU during the period on appeal prior to May 4, 2017 under 38 C.F.R. § 4.16(b). Therefore, the Board finds that the remand directives from the March 2020 Board decision were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has been returned to the Board at this time for further review. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A claim for a TDIU may be raised as a separate claim, or it may be raised in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). A TDIU may be assigned by the Board where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). With regard to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award a TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development, and the Director’s decision is the same as the RO’s as far as the Board’s jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). Moreover, even if the Board or the RO previously determined such referral was warranted, this does not mean the claim will succeed on the merits, because the standard for referral is necessarily "based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating." Ray v. Wilkie, 31 Vet. App.58, 62 (2019) (holding that the Board is not bound to grant an extraschedular benefit even if the Board itself previously determined that referral to the Director was appropriate); see also Anderson v. Shinseki, 22 Vet. App.423, 427-429 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board even if favorable to the Veteran). Therefore, the Board has made its own determination, weighing the favorable and unfavorable evidence, as to whether the evidence supports a finding that the Veteran is entitled to extraschedular DIU under 38C.F.R. §4.16(b). Neither non-service-connected disabilities nor advancing age may be considered in a TDIU determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s non-service-connected disabilities on his ability to function. Here, service connection has been established for the Veteran’s disabilities of posttraumatic stress disorder (PTSD) and coronary artery disease status-post stent placement. As noted earlier, the Veteran has been granted a TDIU for the period beginning May 4, 2017. Thus, this case now concerns whether the Veteran is entitled to a TDIU for the period on appeal prior to May 4, 2017. The Veteran’s PTSD disability has had a 30 percent evaluation for the entire period on appeal. The Veteran’s coronary artery disease disability had an evaluation of 30 percent during the period on appeal between August 29, 2014 and May 4, 2017. Beginning May 4, 2017, the Veteran’s coronary artery disease disability had an evaluation of 60 percent. Thus, for the period on appeal prior to August 29, 2014, the Veteran’s disability evaluation was 30 percent for PTSD. For the period on appeal between August 29, 2014 and May 4, 2017, the Veteran had a combined disability evaluation of 50 percent; and for the period on appeal beginning May 4, 2017, the Veteran has had a combined disability evaluation of 70 percent. Prior to May 4, 2017, the Veteran did not have a single disability ratable at 40 percent or more, nor did he have a combined disability evaluation of 70 percent or more. Thus, the schedular requirement was not met prior to May 4, 2017. See 38 C.F.R. § 4.16(a). The Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities precluded him from participating in substantially gainful employment during the period on appeal prior to May 4, 2017. As noted earlier, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU application) in November 2018. In the TDIU application, the Veteran reported that he last worked full time on September 26, 2001. He stated that his service-connected disabilities affected his full-time employment on September 26, 2001, and he became too disabled to work on that date. The most he had ever earned in one year was $20,000.00 when he was working as a HVAC mechanic. In the TDIU application, the Veteran reported that he had been employed by a company as a HVAC mechanic from October 1, 1980 to September 26, 2001. In that position, he worked 40 hours a week, and his highest gross earnings per month was $1,546.47. He lost 90 days of work because of illness. The Veteran stated that he left his last job because of his disability. The Veteran also reported that he completed his high school education. He stated that he has not tried to obtain employment since he became too disabled to work, and he has had no other education or training before or since he became too disabled to work. In a November 2018 VA Form 21-4192 Request for Employment Information, the Veteran’s former employer stated that the Veteran worked as a HVAC maintenance mechanic from October 1, 1980 to September 26, 2001. He worked 8 hours a day, 48 hours a week; and he earned $18,557.63 in the 12 months preceding the date of last employment. The Veteran’s employer stated that the Veteran lost three months of time from work due to disability in the last 12 months of employment. His last day of work was June 30, 2001, and his last payment date was June 30, 2001. The Veteran’s employer stated that the reason for his termination of employment was because the Veteran was unable to perform his required duties at his doctor’s recommendations. The Veteran’s employer stated that he knew the Veteran had physical and emotional issues, and he made concessions for him as needed, such as leaving work for doctor’s appointments or if things became too stressful. At the March 2017 Board hearing, the Veteran described his PTSD symptoms. He reported that he has problems with hyper-awareness, and he gets very nervous and upset. He reported that, when he watches TV, it irritates him when he sees protesting and other similar things. It brings back a lot of memories. He stated that he tends to feel jittery or panicked; he is sometimes scared of his surroundings, and he wants to get away from some situations. The Veteran also complained of irrational anger and road rage. He also reported fear of the dark, and he stated that he does not like closing his eyes because he does not feel safe. Additionally, he complained of difficulty with attention and forgetfulness. He stated that he can be talking, and he will suddenly forget what he is talking about; his mind wonders off. The Veteran’s wife stated that the Veteran cannot read anymore because he cannot stay focused on what he’s reading. He has to reread over and over, and then he gets upset and puts down whatever he is reading. She stated that he has a hard time concentrating and staying focused. The Veteran also reported that he sometimes starts a project but does not finish it. For example, an addition to his house had been unfinished for 15 years. He stated that he had the same problem when he worked. The Veteran felt he would not be able to work because of his PTSD. The Veteran noted that he has a good relationship with his children and grandchildren. He reported that he plays pool once a week with a team that he has been with for years, and he is close friends with those on the team. However, he sometimes does not go to these meetings because his condition causes him to have low energy and he does not want to go out and be around people. In a March 2017 statement, the Veteran reported that his ability to read and comprehend has gotten worse. He does not trust many people; and he drives angry. He is afraid of the dark and of spiders. He also noted that he has not finished a project in years. In a March 2017 statement, the Veteran’s wife reported that the Veteran has problems finishing things. He starts projects and gets bored, and he rarely finishes them. He started a den over the car port over 25 years ago that is still not finished. He cannot finish books. This upsets and frustrates him. He also hates driving and gets very anxious if he has to drive in unknown areas. He has problems with road rage, and he yells and curses at other drivers. When he watches TV, he yells at people on the shows, especially on the news. The Veteran’s wife also stated that the Veteran is very paranoid. He will not sit with his back to the door when they go out. He also gets easily spooked, even in his own house. Additionally, he has trouble sleeping, and he dreads nighttime. He sleeps with a gun nearby. When he does fall asleep, he does not sleep well, and he fights in his sleep. At an April 2009 VA medical examination, the Veteran was diagnosed with PTSD. The VA examiner found that the Veteran’s current psychological function, functional status, and quality of life were mildly impaired, and he had mild social and occupational impairment due to PTSD. The Veteran reported that he was married, and he has a good relationship with his spouse. He also noted satisfying social relationships. He plays pool on a regular basis with a pool association. The Veteran reported that he was not currently employed and had not been employed for 5 to 10 years. He stated that he had worked as a mechanic, and the reason for his unemployment was because of problems with his leg and neuropathy. The VA examiner noted that the Veteran did not contend that his unemployment was due to the mental disorder’s effects. The April 2009 VA examiner found that the Veteran exhibited frequent daily chronic mild PTSD symptoms. The disturbance caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The Veteran’s PTSD symptoms included recurrent or intrusive distressing recollections of the event, recurrent distressing dreams of the event, and acting or feeling as if the traumatic event were recurring. The Veteran exhibited avoidance symptoms including efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; and feelings of detachment or estrangement from others. The Veteran also exhibited difficulty falling or staying asleep, hypervigilance, and exaggerated startle response. The VA examiner noted that the Veteran’s PTSD symptoms caused an occasional decrease in work efficiency. At the April 2009 VA examination, the Veteran’s general appearance was clean and neatly groomed, and his attitude was cooperative and friendly. His affect was normal, and his mood was good. He was oriented to person, time, and place. His thought process and thought content were unremarkable, and his speech was clear. His memory was normal. His impulse control was good. He denied having panic attacks, delusions, hallucinations, suicidal ideation, or homicidal ideation. He was able to maintain minimum personal hygiene, and he had no problem with activities of daily living. He was capable of managing his financial affairs. The Veteran reported some sleep impairment; specifically, he got four to five hours of sleep per night, and this caused exhaustion that interfered with daytime activities. At a September 2016 VA examination, the VA examiner found that the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care and conversation). The Veteran exhibited symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), and disturbances in motivation and mood. The Veteran also reported symptoms including recurrent nightmares, hypervigilance, feeling tense and keyed up most of the time, fear of being in the dark, and difficulty with attention. He also reported vivid memories of combat that are triggered by scents, being around groups of people, and seeing things that remind him of incidents in Vietnam. The Veteran reported that, after active service, he worked as an assistant manager in various restaurants for a few years. He has also worked in construction, painting, and plastering. The Veteran noted that he is currently retired and has been since 2001. The Veteran stated that he has good relationships with his family members. He helps with outdoor chores, household chores, laundry, and cooking meals. He is able to drive and run errands. Social activities included spending time with friends, playing pool in a league, spending time with his wife, and riding a motorcycle with his wife. At the September 2016 VA examination, the Veteran presented as a polite and cooperative man who was alert and oriented, and he displayed no overt signs of psychosis. His behavior during the interview was appropriate; he was able to answer questions and provided appropriate verbalizations. His grooming and hygiene were good. His eye contact was appropriate. His mood and affect were euthymic. He reported that he sleeps well with medication, getting approximately five to six hours of sound sleep before waking. He endorsed initial insomnia, despite medication. His speech was logical and goal directed and normal in rate and tone; and there were no difficulties with articulation or prosody. His thought processes were within normal limits, and his thought content was within normal limits. Reality testing was intact, and there were no indications of auditory or visual hallucinations. He did not manifest any bizarre mentation or abnormal fears or obsessions during the interview. His insight and judgment were good. He denied homicidal and suicidal ideation. He was capable of managing his financial affairs. At a March 2018 VA examination for PTSD, the Veteran reported that he had worked as a maintenance mechanic for 21 years until he injured his right leg. The Veteran noted that he occasionally did not go into work secondary to his depressed mood and lack of desire to be around people or deal with their demands. He indicated that he did not get into trouble because he did not take advantage or excessively take time off, and his brother-in-law was his boss. The March 2018 VA examiner noted that the April 2009 VA examination had reported that the Veteran’s unemployment was due to his medical problems and not his mental health issues. At a December 2018 VA examination for PTSD, the Veteran reported that he last worked in 2001 as an HVAC mechanic. He noted that the reason he left that position was because he had lost 80 percent of muscle and nerve function in his leg, and he was out sick. The record reflects that the Veteran has been regularly treated for his psychiatric condition. He goes to the VA medical center approximately every three months to check on his medication. He also briefly attended group therapy, but he stopped attending when he found it was not helpful. In an October 2011 Psychiatry Note, the Veteran reported that he keeps lights on in his room, and he has flood lights on around the house. He also installed security system, but he still checks windows and doors about ten times a day. He reported that he has road rage and problems with anger. He fights in his dreams, and he reported extreme memories provoked by smells. He stated that, since 2001, he stays home and takes care of his 85-year-old mother. He also plays pool every Tuesday. Otherwise, he stated that he and his wife are very reclusive. In an October 2013 Psychiatry Note, the Veteran reported having intrusive daily disturbing memories triggered by reminders he avoids, such as news of current wars. He stated that medication has helped his irritability and anger control. He complained of continued hypervigilance. He reported that he medically retired in 2001 because of nerve damage in leg, and he had previously worked as a maintenance mechanic. He stated that he enjoys playing pool. He does chores around the house, and he has breakfast with some friends on some mornings. He had recently put his mother in a nursing home. In a January 2014 Neuropsychology Note, the Veteran complained of memory problems. The Veteran reported that, in 1999, he suffered cardiac or respiratory arrest secondary to an aphylactic shock; and rapid intervention with oxygen and CPR was administered. He reported that mild memory problems began after this illness, and they gradually slightly worsened to the present where he now experiences some word finding problems, as well as some forgetfulness in performance of everyday activities if he doesn’t work from a list of things to do. For example, he sometimes forgets to take medication or visit his mother, or he forgets details of conversations. He stated that he is also having increased problems remembering appointments and people’s names. The Veteran noted that his brother died of cancer and Alzheimer’s disease, and his mother has Alzheimer’s dementia. The Veteran also complained of symptoms of depression, bad dreams, intrusive recollections of combat events, cue avoidance, crowd avoidance, excessive anger, hypervigilance, and hyperarousal. He stated that the intensity of his symptoms has been variable, but they had lately been acutely exacerbated by his life circumstances and by the current wars and media coverage of the wars. The examiner found that the Veteran’s conversational speech was fluent, properly articulated, and appropriately prosodic. Repetition and confrontational naming were intact. Veteran was able to follow complex commands and communicate complex ideas both verbally and in writing. No word-finding problems were observed even though it was a primary complaint of the Veteran. Non-verbal communication was grossly within normal limits. The Veteran exhibited grossly normal memory for new verbal information and new visual information, and higher cognitive functions were grossly intact. In the January 2014 Neuropsychology Note, the Veteran reported that he worked until 2001 when he developed peripheral neuropathy causing loss of function of the right leg for a time. He was unable to perform his job as a mechanic, and he retired. With treatment, he recovered substantial use of his leg, and he now independently ambulates. The examiner noted that the Veteran independently performs all age-appropriate activities of daily living. In a March 2014 Mental Health Neuropsychology Note Addendum, the examiner noted that a formal neuropsychological evaluation revealed no areas of frank impairment or subtle deficits among the assessed neurocognitive functions, including memory. The examiner stated that the Veteran’s reported declines in memory functioning, although certainly concerning, are essentially benign and have not resulted in significant changes in his daily activity. Current testing did not reveal any findings suggestive of memory impairment secondary to cerebral hypoxia. The examiner opined that, more likely, the Veteran’s concerning memory and other cognitive lapses are symptomatic of his chronic PTSD and ongoing life stressors, in combination with normal age-related changes in memory. The Veteran was reported to be independent in self-care activities of daily living, all of which he initiates and performs on a regular basis without prompting or reminding. He was also reportedly independent in most instrumental activities of daily living, including driving, bill paying, financial management, performing household maintenance and repairs, and limited cooking and light meal preparation. Although he endorsed occasional attentional lapses while driving, which has resulted in his missing turns and intended destinations, the Veteran denied ever having gotten lost or confused while driving; and he reported no recent accidents, driving-related mishaps, or changes in driving skill. He reported no difficulties operating familiar everyday high-tech devices such as his laptop computer, his cell phone, or the TV remote control. He reported no difficulties tracking television shows and movies. The Veteran endorsed ongoing symptoms of chronic combat-related PTSD, including recurrent bad dreams, frequent intrusive thoughts of combat, hyperarousal, hypervigilance, and avoidance of war-related media, large crowds, and commotion. He denied current and recent suicidal ideations. His PTSD symptoms had been exacerbated to some extent by the recent conflicts in Afghanistan and Iraq, as well as by chronic worries about finances due to his premature retirement secondary to idiopathic leg pain and peripheral neuropathy. The Veteran reported that he retired in 2001 after developing peripheral neuropathy and being unable to tolerate physical demands of job as a maintenance mechanic. In an August 2014 private disability benefits questionnaire (DBQ) concerning his heart condition, the Veteran was reported to have coronary artery disease, atherosclerotic cardiovascular disease, hypertensive heart disease, and dyslipidemia. The examiner stated that the Veteran had heart conditions that qualified within the generally accepted medical definition of ischemic heart disease. A November 2013 stress test showed small apical septal ischemia. The Veteran required medication to control his heart condition. The Veteran had a myocardial infarction in October 2013. He also had congestive heart failure, but it was not chronic; his last episode of acute congestive heart failure was in October 2013. There was evidence of cardiac hypertrophy in an October 2013 echocardiogram. The October 2013 echocardiogram showed left ventricular ejection fraction (LVEF) of 50 to 55 percent, as well as very mild apical hypokinesis and mild concentric left ventricular hypertrophy. In a May 2017 private DBQ for the Veteran’s heart conditions, the examiner reported diagnoses of coronary artery disease and stable angina. The examiner noted that the Veteran had stent placement in May 2015. Medication was required to control the Veteran’s heart condition. The examiner noted that the Veteran had myocardial infarctions in October 2013 and May 2015. The Veteran had undergone percutaneous coronary intervention (angioplasty) in May 2015. A coronary artery angiogram in March 2017 had revealed basilar honeycombing with mild idiopathic pulmonary fibrosis. The Veteran had not had any acute episodes of congestive heart failure in the past year. An interview based METs test showed the Veteran’s METs levels to be greater than 3 to 5 METs, which was consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4mph). The Veteran exhibited fatigue, angina, and dizziness during activity. The examiner found that the METs level limitation was not due solely to the heart conditions. The examiner opined that 80 percent was due to the heart conditions, and 20 percent was due to non-cardiac pulmonary fibrosis. The Veteran’s heart condition impacted his ability to work in that he had chest pain and shortness of breath with activity. An October 2013 private treatment note reports that the Veteran underwent left heart catheterization via right femoral artery with coronary and left ventricular angiography, right heart catheterization via right femoral vein, and right femoral angiogram with arteriotomy closure. The examiner diagnosed the Veteran with moderate coronary artery disease. The Board has reviewed the balance of the Veteran’s other medical treatment records from the period on appeal. The findings in the other medical treatment records are substantially similar to those noted in the VA examinations and treatment records described above. As noted earlier, the Veteran is currently service connected for disabilities of PTSD and coronary artery disease status-post stent placement. The Veteran has no other service-connected disabilities at this time. The Veteran’s medical records also reflect a history of peripheral neuropathy in the lower extremities. Various private treatment notes from July 2001 indicate that the Veteran was treated for peripheral neuropathy. A private treatment note from August 2001 states that the Veteran’s knee gave way with normal walking, and he had to walk on crutches because of weakness in his leg and his knee giving way. The primary area of pain was the knee, but this sometimes extended from his hip to his knee with a burning sensation. The August 2001 private treatment note states that the Veteran was employed at the time with a finance company as a maintenance mechanic. In a January 2003 Rheumatology Outpatient Note, the Veteran reported that, in July of 2001, he developed severe low back pain while he was working at a physical job. The pain became severe, and he was unable to stand on the right leg. The pain radiated from his hip down into the medial thigh area, and he then began to develop weakness in his right leg. He saw a local neurologist who treated him with Neurontin, which gave him remarkable improvement. He also underwent physical therapy. Another doctor found some abnormalities in his nerve conduction velocities in his lower extremity with a possible formation of a scar in the lower lumbar spine causing irritability of the nerve root. In letters from between August 2001 and November 2001, the Veteran’s private physician, Dr. PM, explained that, because of pain and weakness in the Veteran’s right leg, he was temporarily totally disabled and not able to return to work. In an August 2001 letter, Dr. PM stated that the Veteran may need to be off work for at least 2 months or until approximately mid-October. In a September 2001 letter, Dr. PM anticipated that he would be disabled for at least another seven weeks or longer. In a November 2001 letter, Dr. PM stated that it may be around four to six months before he gets full recovery of muscle power. In a June 2002 letter, Dr. PM reported that the Veteran was still having weakness in his legs and he did not seem to be able to walk very far without feeling like his legs are giving out. He could not ride comfortably in a car for more than 30 minutes or stand for more than 30 minutes comfortably. He also showed some atrophy of the right leg, though he ambulated normally. He was able to walk about three to four blocks. He was not able to do any heavy lifting, and this pretty much eliminated his going back to work as a maintenance man. Dr. PM stated that the Veteran was unable to return to his former type of work, and it is unclear whether he would be employable considering his age and his medical problems. A June 2004 Psychiatry Note indicated that the Veteran had peripheral neuropathy and lumbar radiculopathy. The Veteran reported that, after discharge from active service, he worked as a manager for a steakhouse, and he did construction for a year. He then maintenance mechanic for over 20 years. He reported that he was released from his job after his neuropathy and radiculopathy pain limited his functioning and caused him to enter rehabilitation. In an April 2005 statement, the Veteran reported that he tried to find other employment, but no one wanted to hire him due to medical reasons and his age. He complained of continued pain every day. He stated that he could only walk, sit, or stand for short periods of time (approximately 30 to 45 minutes) without the symptoms of increased pain and worsening weakness. The above physician letters and other records from 2001 and the surrounding months and years are consistent with the Veteran’s reports that he had to leave his job because of his leg and neuropathy issues. They are also consistent with the report of his former employer in the November 2018 VA Form 21-4192 Request for Employment Information stating that the reason for the Veteran’s termination of employment in September 2001 was because, at his doctor’s recommendation, he was unable to perform the required duties of his job as an HVAC maintenance mechanic. In both the TDIU application and the Request for Employment Information, the Veteran was reported to have lost 3 months or 90 days from work in his last 12 months of employment due to illness or disability. Based on the above-described letters from Dr. PM, this appears to be based on Dr. PM’s recommendations related to the Veteran’s peripheral neuropathy and leg problems. However, the Veteran is not service connected for peripheral neuropathy or other problems with his leg. As discussed earlier, non-service-connected disabilities cannot be considered in a TDIU determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s peripheral neuropathy or leg problems on his ability to function. In the Veteran’s November 2018 TDIU application, he stated that he left his job as an HVAC mechanic because of his disability. However, as shown in the evidence described above, the Veteran and his medical providers have repeatedly reported that the Veteran left his job as a HVAC maintenance mechanic because of his problems with his right leg and peripheral neuropathy. For example, at the April 2009 VA examination, the Veteran stated that the reason for the Veteran’s unemployment was because of problems with his leg and neuropathy; and the VA examiner noted that the Veteran did not contend that his unemployment was due to the mental disorder’s effects. To the extent the Veteran now suggests he left his employment because of his heart disease and/or his mental health condition, the Board does not find such assertions credible, as the contemporaneous evidence overwhelmingly establishes he left his job because of nonservice-connected conditions. The Veteran’s representative has asserted that the Veteran had been in sheltered employment in his employment as a HVAC mechanic. At the March 2017 Board hearing, the Veteran stated that he was employed as a HVAC mechanic by his brother-in-law; and he opined that, if he did not work in sheltered employment under his brother-in-law, he would be unemployable. The Veteran noted that the majority of his work as an HVAC mechanic was by himself. Sometimes he would tell his brother-in-law that he had to stop working, and his brother-in-law would let him go. He opined that, under normal employment situations, he probably would have lost his job. However, at the March 2018 VA examination, the Veteran stated that he did not excessively take time off or take advantage of his situation. The Veteran noted that he occasionally did not go to work because of his depressed mood and lack of desire to be around people or deal with their demands, but he again reported that he worked as a maintenance mechanic until he injured his right leg. VA regulations state that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Generally, marginal employment 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. Id. Alternatively, marginal employment may be held to exist on a “facts found basis” (even when earned annual income exceeds the poverty threshold) in situations including but not limited to employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(b). Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Regardless of the assertions of sheltered employment, this is not relevant. Any employment the Veteran had ended in 2001 – long before the appeal period which begins in 2009. The question of whether he had marginal employment is not relevant because he had no employment (and no earnings) during the appeal period from 2009 to 2017. Moreover, the Board finds the assertion that the Veteran was unemployable solely due to his service-connected disabilities of PTSD and coronary artery disease ignores the responsibilities and functions the Veteran was able to undertake in his work as an HVAC mechanic. There is no indication in the evidence of record that the Veteran was incapable of performing essential functions of his position as an HVAC mechanic specifically because of his PTSD and/or coronary artery disease symptoms. As discussed earlier, the primary reason he left his job as an HVAC mechanic was because of his peripheral neuropathy, which is not service connected. Regardless of why he left his employment in 2001, he could still be granted TDIU, however, if the severity of his service-connected disabilities for the period on appeal prior to May 2017 was such that it prevented him from obtaining or maintaining gainful employment. The Board acknowledges that the Veteran’s behavior in his position as an HVAC mechanic was at least partially affected by his psychiatric symptoms. The Veteran has stated that he occasionally missed work because of his depressed mood and lack of desire to be around people or deal with their demands. In the November 2018 Request for Employment Information, the Veteran’s former employer that stated that he knew the Veteran had physical and emotional issues; and he made concessions for him as needed, such as leaving work for doctor’s appointments or if things became too stressful. However, it is unclear from this statement how often this happened because of his physical disabilities compared with how often it happened because of his PTSD, and the Veteran’s former employer stated that the ultimate reason for termination of the Veteran’s employment was his doctor’s recommendation that he could no longer perform the required duties of the job. This referred to the Veteran’s peripheral neuropathy, not his service-connected PTSD or coronary artery disease. Regardless, the evidence of record indicates that Veteran still performed his duties as an HVAC mechanic until 2001 despite any symptoms of PTSD or coronary artery disease. With respect to occasionally taking time off, such effect on occupational functioning is contemplated by the 30 percent rating for PTSD. He never alleged his mental health symptoms interfered with successfully performing his job tasks, only that he sometimes took time off. In an April 2005 statement, the Veteran reported that he tried to find other employment, but no one wanted to hire him due to medical reasons and his age. It is unclear from this statement alone whether he had difficulty finding employment because of his peripheral neuropathy or because of his now service-connected disabilities. Also, as noted earlier, the Board may not consider the effects of the Veteran’s non-service-connected disabilities or his age on his ability to function. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, there is no clear indication in the evidence of record that the Veteran was denied employment elsewhere or was unable to perform essential job functions based on his service-connected disabilities. In an April 2020 Advisory Opinion, the Executive Director of Compensation Service determined that the preponderance of the evidence of record does not show that the Veteran’s service connected heart and mental conditions were of such severity so as to preclude all employment activities of both a physical and sedentary nature during the period on appeal prior to May 4, 2017. The Executive Director stated that, prior to May 4, 2017, the medical evidence of record does not show that physical employment activities and sedentary employment activities were precluded due to the Veteran’s service-connected disabilities so as to make the pursuit of gainful employment impracticable. The Executive Director of Compensation Service explained that the overall evidence fails to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented employment. Thus, the Executive Director found that entitlement to extra-schedular TDIU benefits for the period on appeal prior to May 4, 2017 is not established. Based on the evidence of record as described above, the Board agrees. Although the Veteran’s service-connected disabilities may have impacted his employability during the period on appeal, they did not preclude him from participating in a substantially gainful occupation during the period on appeal prior to May 4, 2017. With respect to his mental health condition, although the Veteran suffered from PTSD symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty with attention, irritability, desire to avoid crowds, and disturbances in motivation and mood, the Veteran was not precluded from performing work that did not require extensive memorization or frequent social interaction during the period on appeal. He could still perform work that allowed him to work largely alone, commit concepts to writing, and take frequent breaks. Despite his complaints of memory issues, there is no objective evidence of such to the extent that they interfered with his ability to work. There is also no persuasive evidence indicating that he was unable to deal appropriately with others in the workplace, despite his complaints of irritability and anger issues. The fact is after he stopped working and during the appeal period between 2009 and 2017, he did continue to engage in some social activities such as breakfast with friends, a pool league, etc. The 2009 and 2016 VA examiners concluded he had only mild social and occupational impairment due to PTSD, with an occasional decrease in work efficiency. The Board also acknowledges that, during the period on appeal prior to May 4, 2017, the Veteran experienced symptoms related to his coronary artery disease disability such as chest pain or shortness of breath with exertion or activity. However, the Veteran was not precluded from performing work that primarily involved desk work or sitting or otherwise required minimal physical exertion and frequent breaks. In 2009, he reported he helped with outdoor chores, household chores, laundry, and cooking meals – all tasks consistent with a light exertion job. His ability to engage in a light exertion job would also be consistent with his estimated MET’s. Although the Veteran points to his estimated METs as showing a higher level of impairment, the medical evidence indicates that not all of those limitations are due to the service-connected heart disease; it was stated that his pulmonary fibrosis accounts for approximately 20 percent of his METs limitations. Although the Veteran’s heart condition may prevent him from engaging in strenuous physical activities, he does retain the capacity to work in a gainful position involving light activities. While the combined effect of the Veteran’s mental health and heart conditions would result in occasional work efficiency/productivity issues and limitations on strenuous physical activities, there is no persuasive evidence he would be unable to maintain a gainful position. The Veteran’s educational and work background was not so limited as to have precluded occupations of the nature described above during the relevant period on appeal. Considering the evidence of record as described above, the Board finds that the preponderance of the evidence is against finding that the Veteran was unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities during the period on appeal prior to May 4, 2017. Therefore, the Veteran’s claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities during the period on appeal prior to May 4, 2017 must be denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leung 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.