Citation Nr: 21010178 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-20 863 DATE: February 24, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran has been in receipt of service connection for ischemic heart disease (IHD) rated 60 percent disabling throughout the appeal period, and this disability prevents him from securing and following a substantially gainful occupation in light of his limited education and occupational history. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 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 from May 1969 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a TDIU. In December 2011 the Veteran filed a notice of disagreement (NOD) and in May 2014 the RO issued a statement of the case (SOC). In May 2014 the Veteran filed a substantive appeal (via VA Form 9). In December 2015 and again in November 2020 the Board remanded the Veteran’s claim for additional development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction complied with the Board’s remand instructions is unnecessary. TDIU from January 26, 2019 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. The central inquiry 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such 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). In the present case, the Veteran is in receipt of service connection for IHD rated 60 percent disabling, effective August 31, 2010. He has thus met the criteria for TDIU throughout the entire appeal period. Although the Veteran is in receipt of service connection for additional disabilities, VA policy is to interpret 38 C.F.R. § 4.16(a) as meaning that, in cases where a Veteran will have one disability ratable at 60 percent with an additional disability rated at 0 or 10 percent, and the combined rating will still equal to 60 percent, VA should consider the schedular requirements to be met. Thus, the reference in 4.16(a) to two or more disabilities should be interpreted as applying to cases where no single disability is sufficient to meet the 60 percent criterion. Moreover, 38 C.F.R. § 4.16(a)(2) provides that disabilities resulting from common etiology are considered a single disability for purposes of one 60 percent disability, and the diabetes mellitus type II rated 10 percent disabling from September 18, 2007 was also service-connected based on herbicide agent exposure and his Veteran’s renal insufficiency is associated with diabetes and rated 20 percent disabling effective January 16, 2019. Thus, the Veteran has met the percentage requirements for a TDIU for the entire appeal period. The remaining question is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the 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 following: 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. Regarding the Veteran’s employability, in the May 2011 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and November 2015 VA Form 21-8940 the Veteran reported that he last worked in 1990. In a March 1991 letter, the Veteran’s former manager stated that the Veteran has not worked since March 1991. At a March 2016 VA examination the Veteran reported that he worked as a refrigeration technician from 1970 to 1990. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue 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"). Significantly, the November 2011 VA examination report reflects that the impairment caused by the Veteran’s heart disease prevents him from doing even light yardwork or brisk walking, allowing only eating, dressing, taking a shower, and slow walking for 1-2 blocks. Given the Veteran’s limited educational and occupation history, his service-connected IHD renders him unable to secure or follow substantially gainful employment. Therefore, entitlement to a TDIU is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, Associate 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.