Citation Nr: 21012706 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-18 703 DATE: March 5, 2021 ORDER Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), is denied. A rating in excess of 10 percent for ischemic heart disease (with the exception of a 100 percent rating from April 4, 2014 through July 31, 2014 due to coronary bypass surgery) is denied. A rating in excess of 10 percent for a scar from coronary surgery associated with ischemic heart disease is denied. An effective date prior to May 19, 2010 for the award of a total disability evaluation based upon individual unemployability (TDIU) is denied. THE VETERAN’S CONTENTIONS The Veteran testified that he was diagnosed with COPD in 2004. See October 2017 Board hearing transcript, p. 23. He contends that his COPD was caused by exposure to Agent Orange in service. Id., p. 25; December 2010 correspondence. The Veteran contends that he meets the criteria for a 100 percent rating for ischemic heart disease as his METs ranged from 2 to 4.2 with no improvement from September 16, 2014 through January 5, 2015, and he had dyspnea, fatigue, angina, and dizziness. See May 2015 VA Form 9. The Veteran testified that he had triple bypass surgery on April 4, 2014, and that he had not had cardiac surgery or stents places since then. See October 2017 Board hearing transcript, p. 15. He testified that in 2017, he lacked energy, had shortness of breath, and that his exercise tolerance was the same as it was in September 2014, when his cardiac rehabilitation showed METS in the two, three, and very low four range. Id., pp. 17-18. He contended that the examination which showed he had METS of seven prior to and after his bypass surgery was inadequate. Id., p. 18. He also testified that he had painful scars due to ischemic heart disease. Id., pp. 19-21. The Veteran contends that he stopped working in 2008 due to his service-connected PTSD. See November 2013 Veteran’s Application for Increased Compensation Based on Unemployability. He previously worked as an electrician. He had an eight-grade education, and a GED. Id; October 2017 Board hearing transcript, p. 33. He stated that he left his job because his PTSD caused him to have trouble with his temper while at work. See October 2017 Board hearing transcript, pp. 32-33. FINDINGS OF FACT 1. The Veteran’s respiratory disorder did not have its clinical onset in service and is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. The workload solely due to the Veteran’s ischemic heart disease is greater than seven to ten METs. 3. During the appeal period, the Veteran had one painful scar on the right knee related to his coronary surgery, which measured 2 centimeters. The Veteran had other scars on the right lower extremity and anterior trunk related to his coronary surgery, which were not painful or unstable, and measured less than 77 square centimeters. 4. Prior to May 19, 2010, the evidence of record does not demonstrate that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for a disability rating in excess of 10 percent for ischemic heart disease (with the exception of 100 percent rating from April 4, 2014 through July 31, 2014 due to coronary bypass surgery) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, DCs 7005, 7017. 3. The criteria for a disability rating in excess of 10 percent for a scar from coronary surgery associated with ischemic heart disease are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7800-7805. 4. The criteria for TDIU, including on an extraschedular basis, prior to May 19, 2010, are not met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1969 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2011 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board previously remanded these matters. In the March 2015 rating decision, the RO awarded service connection for ischemic heart disease with an evaluation of 10 percent effective May 9, 2014. In a May 2015 Statement of the Case (SOC), the RO awarded entitlement to an earlier effective date of January 16, 2014 for the grant of service connection for ischemic heart disease with a 10 percent evaluation, and granted a 100 percent evaluation effective April 4, 2014, and a 10 percent evaluation effective August 1, 2014. In October 2017, the Veteran testified at a hearing before a Veterans Law Judge of the Board (VLJ). A transcript of the hearing is of record. The VLJ who held the October 2017 hearing is no longer a VLJ at the Board. The Veteran did not respond to a November 2020 clarification letter as to whether he wanted a hearing before another VLJ. As such, the Board assumes that the Veteran does not want another Board hearing; therefore, the Board may proceed with adjudication of the issues on appeal. The September 2018 Board remand included a directive instructing the AOJ to ask the Veteran to provide a signed release of information (VA Form 21-4142) in order to obtain treatment records for cardiac rehabilitation treatment at High Point Regional Health Care Center and to obtain all available treatment from Greensboro Vet Center since 2015. In March 2019 and July 2019, letters were sent to the Veteran requesting that he complete and return a VA Form 21-4142 authorization to obtain these records. To date, the Veteran has not responded to the request. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To the extent possible, VA has attempted to assist the Veteran. Accordingly, no further attempts to assist are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992). The Board finds there was substantial compliance with the Board’s September 2018 remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). 1. Respiratory disorder, to include COPD Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). As the Veteran serviced in the Republic of Vietnam, the Veteran is presumed to have been exposed to Agent Orange during service. VA regulations provide that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; ischemic heart disease, all chronic B-cell leukemias, chronic lymphocytic leukemia (CLL); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease, early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. The Veteran has a diagnosis of COPD. See October 2019 VA examination; February 2006 VA treatment record. The October 2019 VA examiner does not diagnose any other respiratory disorder. COPD is not among those diseases presumptively linked to herbicide exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, this condition would not warrant service connection on a presumptive basis based on Agent Orange exposure. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The service treatment records do not show a respiratory disorder. The Veteran reported COPD since 2004. See May 2008 VA treatment record; October 2017 Board hearing transcript, p. 23; October 2019 VA examination report. At the October 2019 VA examination, the Veteran reported that he started smoking as a teenager and stopped smoking in 2006. The VA examiner provided a negative nexus opinion. She determined that had the Veteran never deployed to Vietnam, and maintained his smoking habit, he would be in this very same situation with severe COPD, as chronic cigarette usage remains the most important risk factor for the development of COPD, regardless of his one year overseas exposure to Agent Orange or other chemicals during his Vietnam service. The Board finds the October 2019 VA examiner’s opinion to be highly probative as it is based on a review of the claims file and relevant facts and an examination of the Veteran, and the examiner provided detailed rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent medical opinion of record to the contrary. The only evidence that the Veteran’s COPD is related to his service are the lay statements of the Veteran. While the Veteran, as a lay person, is competent to provide evidence regarding the symptoms he observed, he is not competent to offer an opinion as to the etiology of his COPD symptoms because this matter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim, and entitlement to service connection for a respiratory disorder, to include COPD, is denied. 2. Ischemic heart disease The Veteran’s service-connected ischemic heart disease is currently rated as 10 percent disabling from January 16, 2014; 100 percent disabling from April 4, 2014, and a 10 percent disabling from August 1, 2014. The condition is evaluated under 38 C.F.R. § 4.104, DC 7017. Under DC 7017, a 100 percent rating is warranted for coronary bypass surgery for three months following hospital admission for surgery. Thereafter, a 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 10 percent rating is warranted for a workload greater than 7 METs but not greater than 10 METs resulting in in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. The evidence shows that the Veteran had a triple bypass graft on April 4, 2014. See VA treatment records. The Board finds that, prior to the Veteran’s triple bypass graft surgery on April 4, 2014, the appropriate rating for the Veteran’s ischemic heart disease is DC 7005. Pursuant to DC 7005, a 10 percent evaluation is warranted for a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. The particular unit of heart workload referenced above, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory finding of METs by physical testing cannot be achieved for medical reasons, an estimate by a clinical examiner of the level of activity (expressed in METs and supported by examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Board finds that an increased rating is not warranted under either DC 7005 or DC 7017 throughout the appeal period. The Veteran diagnosis of ischemic heart disease was first confirmed by an exercise stress test on January 16, 2014. The stress test shows a workload of 7 METs and that the exercise was discontinued due to fatigue. See January 2014 VA treatment records. As noted above, the evidence shows that the Veteran had a triple bypass graft on April 4, 2014. See April 2014 VA treatment record; see also April 2014 Disability Benefits Questionnaire (DBQ). A March 2014 echocardiogram shows ejection fraction of greater than 55 percent. See VA treatment record. The Veteran attended a VA heart examination in August 2014. The exercise stress test resulted in an assessment of 7 METs; however, the interview-based METs test was greater than 7 to 10 METs. LVEF was 55 percent. The examiner noted that the METS level limitation was not solely due to the heart condition. He determined that the Veteran’s METs level was limited by his emphysema/COPD in addition to coronary artery disease. He noted that LVEF testing is a more accurate assessment of the Veteran’s cardiac function and it was normal prior to the coronary artery bypass grafting. An August 2014 stress test indicates that exercise on the treadmill was stopped due to dyspnea with METs of 4.6, and functional capacity was noted to be poor. See August and September 2014 VA treatment records. Cardiac rehabilitation private treatment records from September 2014 to December 2014 show METS ranging from 1.9 to 4.2. See private treatment records from High Point Regional. The Veteran testified in October 2017 that he has shortness of breath, a low exercise tolerance, and low energy due to his ischemic heart disease. Due to the inconsistent evidence regarding the Veteran’s METs levels in 2014 and the lack of recent medical evidence, the September 2018 Board remand directed the RO to schedule an additional VA examination to evaluate the current severity of the Veteran’s ischemic heart disease and to reconcile inconsistent past findings. Pursuant to the remand directives, a VA examination was conducted in October 2019. Upon examination, LVEF was 60 percent and interview-based METs testing was less than three to five METs with dyspnea and fatigue. The examiner noted that the METs level provided was not due solely to the Veteran’s heart condition. She determined that the estimated METs level due solely to the Veteran’s heart condition was greater than seven to 10 METs. She determined that the Veteran’s severe COPD was a limiting factor in METs testing. She further explained that METs is not an adequate or appropriate means by which to measure the Veteran’s cardiac function as it is confounded by unrelated variables such as severe pulmonary disease and deconditioning; and that ejection fraction is really the only adequate means to estimate true METs regarding cardiac function. She determined that the Veteran’s METs level was greater than seven to ten prior to the coronary artery bypass graft and was likely also greater than seven to ten following the coronary artery bypass graft, but was skewed by his poor conditioning due to age, sedentary lifestyle, and worsening COPD. She further noted that the mild concentric LVH (hypertrophy) and grade 1 diastolic dysfunction in March 2014, which had now resolved, were solely due to nonservice-connected hypertension. The Board finds the October 2019 VA examiner’s opinion to be highly probative as the opinion is based on a review of the claims file and relevant facts, examination of the Veteran, and the examiner a provided detailed rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the Veteran’s ischemic heart disease alone is productive of a METs level of greater than 7, and is not manifested by cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, the Board concludes that the Veteran’s ischemic heart disease is appropriately rated, and a higher rating is not warranted for the Veteran’s ischemic heart disease at any time during the appeal period. 3. Scars associated with ischemic heart disease The Board has also considered whether a higher rating is warranted for the Veteran’s scars from coronary surgery associated with his ischemic heart disease. The Veteran’s scars are currently rated 10 percent disabling under DC 7804 and noncompensable under DC 7805 since May 9, 2014. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran’s claim. Prior to August 13, 2018 DC 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under DC 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) to DC 7800 provides that the eight characteristics of disfigurement for purposes of evaluation are: a scar five or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118. Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent). Under the DC 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. Since August 13, 2018 Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). DC 7800 remained the same. DC 7801 was amended to remove “deep and nonlinear scars” which was replaced with “underlying soft tissue damage.” DC 7802 was amended to remove “superficial and nonlinear” and was replaced with “not associated with underlying soft tissue damage.” Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. DCs 7804 and 7805 were unaffected by the recent revisions. The August 2014 VA examination shows multiple scars related to the Veteran’s heart condition. None of the scars were located on the head, face, or neck. Only one scar was noted to be painful, which was on the right knee joint. The right lower extremity scars measured 2 centimeters, 2 centimeters, 0.5 centimeters, and 0.5 centimeters. The scars on the anterior trunk measured 15.5 centimeters, 1.75 centimeters, 1.5 centimeters, 1.25 centimeters, and 0.75 centimeters. The October 2019 VA examination noted no scar that was painful and/or unstable, had a total area equal to or greater than 39 square centimeters (6 square inches), or that was located on the head, face, or neck. The examiner noted one scar on the chest measuring 15 by 0.5 centimeters. Based on the aforementioned evidence, higher ratings are not warranted for the Veteran’s scars related to his ischemic heart disease. 4. TDIU The Veteran is currently in receipt of TDIU on an extraschedular basis from May 19, 2010. Accordingly, the issue on appeal is entitlement to TDIU prior to May 19, 2010. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran does not meet the schedular the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) due to his service-connected disabilities for the time period in question. Prior to May 19, 2010, the Veteran’s service-connected disabilities were as follows: 1) PTSD, rated 30 percent disabling; 2) tension headaches, rated noncompensable; 3) diabetes mellitus, type II, rated 10 percent disabling; 4) tinnitus, rated 10 percent disabling; and 5) bilateral hearing loss rated noncompensable. His combined evaluation was 40 percent. Accordingly, TDIU is not warranted on a schedular basis prior to May 19, 2010. When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU rating may be granted on an extraschedular basis in exceptional cases 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 cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015) (Board is authorized to award extraschedular TDIU after obtaining the Director’s decision). Pursuant to the September 2018 Board remand directives, the Board submitted the claim for extraschedular consideration and in a June 2020 determination, the Director concluded that entitlement to a TDIU is warranted on an extraschedular basis due to PTSD from at least May 19, 2010. Thus, the Board is now authorized to review the issue de novo. Id. The Board notes that the Director’s determination is not evidence, but rather akin to a decision by the agency of original jurisdiction. Id. In accordance with the Director’s determination, TDIU was granted on an extraschedular basis from May 19, 2010, the date of the Veteran’s claim for an increased rating for PTSD. The Board finds that entitlement to TDIU is not warranted on an extraschedular basis prior to May 19, 2010. The Veteran’s TDIU claim was raised as part of the Veteran’s claim for an increased rating for PTSD on May 19, 2010. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). The Board finds that it is not factually ascertainable that the Veteran was rendered unemployable due to his service-connected disabilities within the year prior to May 19, 2010 claim. As noted above, the Veteran contends that he stopped working in 2008 due to his service-connected PTSD. See November 2013 Veteran’s Application for Increased Compensation Based on Unemployability. He previously worked as an electrician. He had an eight-grade education, and a GED. Id; October 2017 Board hearing transcript, p. 33. He stated that he left his job because his PTSD caused him to have trouble with his temper while at work. See October 2017 Board hearing transcript, pp. 32-33. However, an August 2009 VA treatment record shows that that Veteran reported he was unable to work due to his back and leg pain; arthritis of the spine, neck and shoulders; chronic obstructive pulmonary disease (COPD); PTSD; and hearing loss. See August 2009 VA treatment record. In August 2009, a vocational rehabilitation specialist wrote that the Veteran had been unemployed for a year and that he reported being unable to work due to his multiple medical and psychological problems. The vocational rehabilitation specialist wrote that, based on the Veteran’s diagnoses and his own reports of his physical limitations caused by COPD and back problems, he would not fit into a position that would require some level of physical ability. The Board notes that the Social Security Administration (SSA) determined the Veteran to be disabled effective July 10, 2008 due to a primary diagnosis of COPD and a secondary diagnosis of anxiety related disorders. The Board acknowledges that a February 2010 evaluation from a social worker indicated that the Veteran’s posttraumatic stress disorder caused him to be moderately or markedly limited in many work abilities; and a February 2010 VA psychiatric examination found that the Veteran would always have some problems dealing with co-workers and supervisors, he could not learn procedures or follow complex instructions, and he had some anxiety, irritability, depression, and poor sleep. The Board also acknowledges that the February 2009 VA examiner noted that the Veteran’s hearing loss had significant effects on his occupation; however, the Veteran’s bilateral hearing loss was rated noncompensable. Despite the evidence showing some impairment in the Veteran’s ability to work due to his service-connected disabilities prior to May 19, 2010, the Board finds that it is not factually ascertainable that the Veteran was rendered totally unemployable as a result of service-connected disabilities within one year prior to the date of his May 19, 2010 increased rating claim. The Board notes that service connection is not in effect for the Veteran’s COPD, back problems, or arthritis and, as noted above, these non-service connected disabilities contributed to the Veteran’s unemployability prior to May 19, 2010. Additionally, although the Veteran contends that his PTSD primarily prevented him from working due to arguments with other employees, he also testified that he primarily worked alone in his employment as an electrician. See Board hearing transcript, pp. 30-32. While the February 2010 VA examiner found some impairment in employment, the examiner did not find total occupational impairment. Rather, the examination report shows that the Veteran lived alone; took care of activities of daily living; cooked; cleaned; did his own grocery shopping and laundry; paid bills; drove; went out to eat; used the internet; and was able to handle financial benefits in his own best interest. Further, in regard to headaches, the February 2009 VA examination report shows that the Veteran only missed work once per month due to headaches. While the Board is sympathetic to the Veteran’s contentions regarding his inability to work prior to May 19, 2010, the Board finds that the preponderance of the evidence does not show that worsening of the Veteran’s service-connected disabilities in the year prior to May 19, 2010 rendered him unemployable. Accordingly, an award of TDIU on an extraschedular basis prior to May 19, 2010 is not warranted. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.