Citation Nr: 21009107 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-27 052 DATE: February 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from January 13, 2010 through July 21, 2011, on an extraschedular basis, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. During the period from January 13, 2010 through July 21, 2011, the Veteran was service-connected for the following disabilities: coronary artery disease (CAD), postoperative coronary artery bypass graft, rated 10 percent disabling prior to February 10, 2011 and 30 percent disabling, from February 10, 2011 through July 21, 2011; posttraumatic stress disorder (PTSD), rated 30 percent disabling; and postoperative residuals, scarring post coronary artery bypass graft, rated noncompensable; his combined disability rating was 40 percent, prior to February 10, 2011, and 50 percent, from February 10, 2011 through July 21, 2011. 2. The evidence is at least evenly balanced as to whether, from January 13, 2010 through July 21, 2011, the Veteran’s service-connected disabilities precluded all substantially gainful employment consistent with his level of education and work experience. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities, from January 13, 2010 through July 21, 2011, on an extraschedular basis, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1967 to December 1971. His awards include the Army Commendation Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision. In October 2019, the Board granted a TDIU on a schedular basis from July 22, 2011, and remanded the matter of entitlement to a TDIU prior to this date for extraschedular consideration by the Director of Compensation (Director). The matter has since been returned to the Board. The Veteran and his spouse testified at a May 2019 hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. In a November 2020 letter, the Board notified the Veteran that the VLJ he testified before was unavailable to decide the case and informed him that he could elect to have another hearing before a different VLJ. Later in November 2020, the Veteran indicated that he did not wish to appear at another Board hearing. Entitlement to a TDIU on an extraschedular basis prior to July 22, 2011 TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities affecting a single body system (e.g. orthopedic) are considered as one disability for the purposes of meeting the 60 percent or 40 percent requirement. The central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. 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. The Veteran’s service-connected disabilities were rated as follows during the period from January 13, 2010 through July 21, 2011: CAD, postoperative coronary artery bypass graft, rated 10 percent disabling prior to February 10, 2011 and 30 percent disabling, from February 10, 2011 through July 21, 2011; PTSD, rated 30 percent disabling; and postoperative residuals, scarring post coronary artery bypass grafting, evaluated as noncompensable (0 percent disabling). He had a combined disability rating of 40 percent, prior to February 10, 2011, and 50 percent, from February 10, 2011 through July 21, 2011. Thus, he did not meet the percentage requirements for a schedular TDIU prior to July 22, 2011. Notwithstanding, where the combined rating percentage requirements are not met, entitlement to a TDIU may be nonetheless considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). In this case, the issue of entitlement to TDIU on an extraschedular basis was referred to the Director for extraschedular consideration pursuant to the October 2019 Board remand. In a September 2020 VA Memo, the Director acknowledged review of the claims file and concluded that the evidence failed to support the contention that the Veteran’s service-connected disabilities prevented gainful employment prior to July 22, 2011. The Director explained that the Veteran could perform non-physical employment prior to this date, as SSA records showed that he could lift 10 pounds, walk and sit 6 hours in an 8-hour workday, and was not limited in pushing or pulling, and able to perform some exercises and yard work. Similarly, a February 2011 VA medical opinion showed that he could walk a half-mile prior to onset of dyspnea, climb a flight of stairs, lift 10 pounds, perform light cleaning, mow his yard with a riding lawnmower, and deer hunt. The Director acknowledged the Veteran’s and spouse’s lay statements on the inability to work, however, the record did not show that the Veteran attempted to obtain non-physical employment since 2010. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board conducts a de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages, 27 Vet. App. at 236-39 (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson, 22 Vet. App. at 427 (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal”). For a claimant to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran was last employed from 2001 to 2006 as an assembly worker for a carwash equipment manufacturer. See May 2019 Hearing Transcript. Prior to this job, he worked in the construction industry, including as a factory worker, for 10 years. See July 2015 VA PTSD Examination. As for education, the Veteran completed one year of high school. In an August 2010 letter, his spouse reported that he attended special education due to a learning disability, has trouble understanding tasks, and does not drive because he is easily distracted. See August 2010 Third Party Correspondence. In his TDIU application, the Veteran reported that he became too disabled to work in June 2006 due to his service-connected heart condition and PTSD. As stated, the records shows that the Veteran was last employed in June 2006 as an assembly worker. In an April 2007 VA Form 21-4192, Request for Employment Information, his last employer noted that the Veteran was provided a concession of working an earlier shift to avoid possible “heat related issues” and that his employment was terminated due to physical restrictions and health issues. In a June 2006 dated letter, the same employer reported that the Veteran was terminated due to physical restrictions preventing his ability to perform job tasks since his March 2004 heart attack. See April 2007 Third Party Correspondence. The Veteran could not lift more than 5 pounds and was unable to work due to serious health issues and related symptoms requiring hospitalization. Id. The Veteran’s spouse testified that after 2006, the Veteran did not attempt to find non-physical employment because his work history was physical, not administrative, in nature. As discussed, the claims file contains an SSA disability determination finding that the Veteran could not work due to his CAD, beginning June 16, 2006. While SSA benefits are considered in TDIU decisions, they are not determinative. In May 2010 the Veteran underwent a VA examination for his PTSD. He reported performing yard work with some assistance from his son. He described having some friends that he will visit. He experienced nightmares, impaired sleep, intrusive thoughts of traumatic events in service, a hyperstartle response, and hypervigilance. The examiner described the Veteran’s PTSD symptoms as moderate and opined that there was no evidence that PTSD precluded employment. Notably, during the examination there was no impairment of thought process or communication, but the Veteran displayed significant anxiety and dysphoria. The examiner acknowledged that the Veteran was unemployed, but the Veteran himself attributed his unemployment to his heart condition, not PTSD. In July 2011 the Veteran underwent another VA examination for his PTSD. He reported working on lawnmowers, including fixing other people’s lawnmowers. Although the Veteran reported social functioning impairments, such as exaggerated startle response and crowd avoidance, the examiner opined that the Veteran’s PTSD symptoms did not preclude gainful employment. On examination, the Veteran had no impairment of thought process or communication and his symptoms were fairly stable since his last examination. As such, the examiner concluded that the Veteran did not meet the criteria for individual unemployability due to his PTSD. Further, the examiner noted the Veteran’s statement that he filed a claim for TDIU due to his heart condition, not PTSD. As for his heart condition, in February 2011 the Veteran underwent a VA examination for his CAD. He reported that he could perform activities of daily living, walk a half mile prior to dyspnea, climb a flight of stairs, lift 10 pounds, perform light cleaning, mow the lawn with a riding lawnmower, and deer hunt. The claims file contains multiple lay statements. For instance, in July 2011, the Veteran’s spouse reported that the Veteran was unable to “hold down a job, because sometimes just out of the blue he has to s[i]t down for a while or even lay down just to catch his breath....” She stated that he was unable to lift any weight because of his heart condition. Lay persons are competent to testify as to symptomatology and observations, and the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The above evidence reflects that the Veteran completed one year of high school, that his employment experience entirely consisted of physical labor, that he stopped working in 2006 due to worsening cardiac symptoms, that he has not been gainfully employed since that time, and that he was awarded SSA disability benefits on the basis of his cardiac disability. In the years since he stopped working, he has experienced symptoms associated with his service-connected disabilities that result in functional impairments that significantly interfere with his ability to secure and follow any substantially gainful employment consistent with his limited education and occupational experience involving physical labor. For instance, his medical records and lay statements reflect symptoms and impairments associated with his service-connected cardiac disability and psychiatric disability (including shortness of breath, fatigue, a limited ability to walk and lift weight, anxiety, depression, intrusive thoughts, and hypervigilance) that would prevent him from performing any type of substantially gainful employment consistent with his limited education and primarily physical occupational experience. While there are medical opinions of record that the Veteran was not totally unemployable due to his service-connected disabilities alone, 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, 733 F.3d at 1354. Overall, the Board finds that the above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities, his limited education, and his solely physical occupational experience, to include the medical opinions, reflects that the evidence is at least evenly balanced as to whether he was unable to secure and follow substantially gainful employment due solely to his service-connected disabilities during the claim period prior to July 22, 2011. In October 2020 Correspondence, the Veteran’s spouse requested a grant of the TDIU claim back to April 2007. The Board acknowledges that the Veteran initially filed an application for a TDIU in April 2007, but that claim was denied in a November 2008 Board decision. The Board’s decision was final when issued. See 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision). The Veteran did not seek reconsideration by the Chairman of the Board or appeal the denial to the Court. Subsequently, in a January 2010 statement (VA Form 21-4138), the Veteran contended that he was unable to work due to his health problems. This statement was received by VA on January 13, 2010. He submitted a formal application for a TDIU (VA Form 21-8940) in April 2010, which was denied in the June 2010 rating decision, from which the current appeal originates. (CONTINUED ON NEXT PAGE) In sum, the earliest that it is factually ascertainable that the Veteran was unable to secure and follow substantially gainful employment following the Board’s November 2008 decision is January 13, 2010, the date of receipt of his January 2010 informal TDIU claim. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU, from January 13, 2010 (but no earlier) through July 21, 2011, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.