Citation Nr: 21008784 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-26 932 DATE: February 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from September 19, 2005, to August 9, 2010. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment from September 19, 2005, to August 9, 2010. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU on an extraschedular basis from September 19, 2005, to August 9, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that granted service connection for coronary artery disease (CAD) and assigned a 10 percent rating from September 19, 2005, to March 12, 2010, and a 30 percent rating from that date. A May 2014 rating decision granted entitlement to TDIU from September 14, 2012. In September 2016 and April 2018, the Board, in part, remanded the issues of entitlement to increased ratings for the service-connected CAD and entitlement to TDIU to the Agency of Original Jurisdiction (AOJ) for additional development. A June 2020 Board decision denied entitlement to increased schedular ratings for the CAD, granted entitlement to TDIU from the earlier date of August 9, 2010, and remanded entitlement to TDIU on an extraschedular basis prior to August 9, 2010, to the AOJ. Entitlement to TDIU prior to August 9, 2010. The Veteran contends his service-connected disabilities, particularly the CAD, prevented him from working from September 19, 2005, the effective date of service connection for the CAD, bilateral hearing loss, and tinnitus. A TDIU may be assigned when 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 a single service-connected disability ratable at 60 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected CAD was rated 10 percent disabling from September 19, 2005, to March 12, 2010, and 30 percent disabling from that date to August 9, 2010. The Veteran’s other service-connected disabilities during this period were bilateral hearing loss, rated noncompenable, and tinnitus, rated 10 percent disabling. Accordingly, the Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to August 9, 2010. Nonetheless, entitlement to TDIU can be granted on an extraschedular basis if the service-connected disabilites prevented him from securing or following a substantially gainful occupation from September 19, 2005, to August 9, 2010. Based on a review of the record, the Board finds the evidence for and against finding that the Veteran’s service-connected disabilities prevented him from securing substantially gainful employment during this period is of equal weight. Importantly, while the June 2020 Board decision denied entitlement to increased schedular ratings for the CAD, it granted entitlement to TDIU from an earlier date based, in part, on the effects of the CAD. The Board now finds the same evidence referenced in that decision supports finding the CAD would have prevented him from being able to find gainful employment from September 19, 2005. In a July 2004 resignation letter, the Veteran noted that after consulting with his doctors he did not feel he was physically able to work as a police officer, in part, due to his recent coronary artery bypass surgery. In an attached, June 2004 letter, the Veteran’s treating cardiologist noted he had recommended the Veteran stop working as a police officer due to his medical conditions. The Veteran was provided a VA heart examination in March 2010. The Veteran complained of fatigue, low energy, and a lack of stamina. The examiner noted he was asymptomatic while working as a police officer, but had poor strength, stamina, and energy at the time of the examination. A June 2011 VA examiner opined the Veteran was unable to secure or maintain substantially gainful employment as a police officer because of the CAD. The examiner reported strenuous activity is not advised with a diagnosis of CAD and that the disability precludes physical, but not sedentary, employment. The examiner noted the Veteran had been very weak since the 2004 heart surgery and that the course since onset had been stable, implying that the opinion applied to the effect of the CAD from before the effective date of service connection of September 19, 2005 and, therefore, during the entire period on appeal. In addition, the Veteran reported during a December 2005 VA audiological examination that his bilateral hearing loss and tinnitus caused him to misunderstand others and respond to questions incorrectly. Notably, the Veteran worked as a police officer since 1982 until his retirement and thus would have difficulty securing employment that did not involve the physical and other specific, law enforcement skills he learned over those more than 20 years. While Social Security Administration (SSA) decisions are made using different criteria and are not binding on the Board, the Board notes the SSA found the Veteran was unable to perform the requirements of his past work and did not have transferable work skills in a January 2007 decision that found the Veteran disabled for SSA purposes from February 2003. The ultimate determination of whether the Veteran is capable of maintaining substantially gainful employment is a factual question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Considering the Veteran’s physical limitations and difficulty understanding others with his educational and occupational background, the Board finds is at least in equipoise as to whether his service-connected disabilities prevented him from securing or following substantially gainful employment from September 19, 2005, to August 9, 2010. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Accordingly, entitlement to TDIU on an extraschedular basis from September 19, 2005, to August 9, 2010 is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.