Citation Nr: 21013084 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-62 319 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities, prior to December 24, 2019 is denied. FINDING OF FACT Prior to December 24, 2019, the Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to December 24, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in April 2019. In a July 2020 rating decision, the RO granted entitlement to a TDIU effective December 24, 2019. Accordingly, the issue that remains on appeal is whether entitlement to a TDIU is warranted for the period on appeal prior to December 24, 2019. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU prior to December 24, 2019 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the threshold requirements for TDIU for the period on appeal prior to December 24, 2019. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board finds that the Veteran’s service-connected disabilities of ischemic heart disease, type II diabetes mellitus, peripheral neuropathy, and residuals of prostate cancer arise from a common etiology (i.e. herbicide agent exposure), and thus may be considered as a single disability rated at 60 percent for the period on appeal prior to December 24, 2019. Therefore, the threshold requirements of TDIU prior to December 24, 2019, are met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran completed a VA form 21-8940 in January 2015, indicating that he last worked full time in 1989. The Veteran reported that he previously worked as an automobile mechanic and truck driver. The Veteran further reported that he did not attend college and has not received any other education or training since 1989. The Veteran had an examination for his prostate cancer residuals in May 2014. The examiner indicated that the Veteran’s prostate cancer did not impact his ability to work. The Veteran had an examination for his ischemic heart disease in the form of a disability benefits questionnaire (DBQ) in July 2014. The examiner noted that the Veteran’s ischemic heart disease impacted his ability to work. Specifically, the examiner noted that the Veteran reported shortness of breath walking room to room. The examiner further noted that the Veteran had a history of COPD, chronic respiratory failure, and uses oxygen chronically for COPD. In VA treatment records from August 2014 VA, the Veteran’s physician opined that the Veteran is unable to work due to multiple conditions including COPD, which requires oxygen therapy. In a January 2015 examination for the Veteran’s depression disability, the Veteran reported that he was a truck driver for 13 years. He further reported that he then worked as a mechanic for 9 years, until his knees “went south” and he was medically released from his job in 1989 and this was the last time he worked full time. The Veteran stated that he tried working part time jobs but found that he had to leave each of these jobs because he was able to get down, but he could not get back up. The Veteran had another examination for his ischemic heart disease in September 2016. The examiner noted that the Veteran had a METs level of 1-3, which has been found to be consistent with activities such as eating, dressing, taking a shower, slow walking (2 mph) for 1-2 blocks. However, the examiner noted that the limitation in METs level is due to multiple medical conditions including the heart condition, and that it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner indicated that the Veteran’s heart condition did not impact his ability to work. Additionally, the examiner stated that EF better indicator of cardiac function than estimated METs because METs compounded by the Veteran’s severe COPD, deconditioning, and obesity. The Veteran had another examination for his prostate cancer residuals in September 2016. The examiner indicated that the Veteran’s prostate cancer did not impact his ability to work. In a January 2017 statement, the Veteran’s son-in-law stated that the Veteran does not sleep well and is always tired. Additionally, he stated that the Veteran cannot walk to the end of the driveway without having to stop to catch his breath. He further indicated that the Veteran has issues with frequent urination. Furthermore, he stated that the Veteran’s neuropathy in his legs has gotten very bad. In a January 2017 statement, the Veteran’s friend stated that the Veteran cannot stand for very long, and that his legs hurt. He also indicated that the Veteran is frequently out of breath and requires supplemental oxygen. He also stated that the Veteran has mood swings and is sometimes forgetful. Additionally, he stated that the Veteran needs a scooter for ambulation if they go somewhere. The Veteran’s home health aide stated in January 2017 that the Veteran used to be “sharp as a tac” but now he is confused at times and angers quickly. She further stated that he is often moody and is always tired. Furthermore, she stated that the Veteran needs to use his oxygen “100% of the time” and that he becomes out of breath a lot more often. She also stated that the Veteran cannot walk far, has balance issues, and requires a scooter. Additionally, she noted that the Veteran’s memory has declined, and that he has lost friends due to his constant suspicion of their actions. In a January 2017 statement, the Veteran stated that he has a difficult time relating to anyone and feels like he is secluding himself from others. Additionally, the Veteran reported having shortness of breath. He also stated that his peripheral neuropathy pain is sometimes so bad that he cannot even get dressed. In January 2017, the Veteran’s wife stated that the Veteran has no stamina and “falls asleep at the drop of a hat”. She further noted that the Veteran has become more withdrawn. She noted that the Veteran is frequently out of breath. She also noted that the Veteran has issues with frequent urination, constipation, diarrhea, and abdominal cramping since he received radiation for his prostate cancer. She also indicated that the Veteran requires the use of oxygen constantly. In a January 2017 statement, the Veteran’s daughter stated that the Veteran has become weak and tired. She further stated that he cannot sleep due to frequent urination. She stated that he wears the same clothes all week and will not shower because it hurts to stand on his legs. She indicated that his legs look “dead” and that they are “black and purple”. She stated that the Veteran is unemployable because he is confined to a scooter or wheelchair and on oxygen 24 hours a day. She further noted that the Veteran must urinate every half hour and frequently repeats himself. She stated that the Veteran’s feet and legs hurt so much that he is on morphine for the pain. Additionally, she stated that the Veteran is extremely fatigued after walking short distances and that he is so weak that even holding a cup of coffee can be difficult. She further stated that he loses consciousness while conversating. In a January 2017 DBQ for the Veteran’s ischemic heart disease, the examiner noted that the Veteran experiences symptoms at 1-3 METs. The examiner further indicated that the Veteran’s heart condition impacted his ability to work. Specifically, the examiner noted that the Veteran reported chest pain and shortness of breath with exertion that subsides with rest. Additionally, the examiner noted that the Veteran used a wheelchair in the clinic. Given the totality of the record, the Board finds that the Veteran’s service-connected disabilities do not render him unemployable for the period on appeal prior to December 24, 2019. The Board notes that the Veteran has mobility issues due to his ischemic heart disease, diabetes, and radiculopathy disabilities. However, the probative medical evidence of record indicates that the Veteran’s service-connected disabilities alone do not render him unemployable. The medical evidence of record notes that the Veteran’s service-connected disabilities impact his ability to work by limiting his ability to walk. However, the medical evidence of record does not preclude the Veteran from working in an office setting. Ultimately, Veteran’s service-connected disabilities did not render him unable to secure and maintain substantially gainful employment for the period on appeal prior to December 24, 2019. Furthermore, the Board notes that the Veteran’s reported inability to work appears to be attributable in significant part to non-service-connected conditions. The medical evidence of record indicates that the Veteran’s mobility issues in part due to his non-service-connected conditions of COPD and obesity. Particularly, the September 2016 examination noted that the Veteran’s METs level was due in part to multiple medical conditions including non-service-connected conditions such as severe COPD, deconditioning, and obesity. Additionally, the Board recognizes that the Veteran has been in receipt of SSA disability benefits. However, SSA determinations, while probative, are not binding on the Board, as they involve the application of different legal standards. See Collier v. Derwinski, 1 Vet. App. 413 (1991). Specifically, the March 1993 SSA decision that granted the Veteran entitlement to SSA disability benefits, considered non-service-connected disabilities, such as the bilateral degenerative joint disease of the knees and sleep apnea, as well as the Veteran’s age, which are factors that VA cannot consider. The Veteran has contended in his December 2016 Form 9 Appeal that a VA examiner did not address his TDIU claim based on the collective effect of all his service-connected disabilities. The Board notes that the United States Court of Appeals for Veterans Claims has held that “a combined-effects medical examination report or opinion is not required per se by any statute, regulation, or policy to properly decide entitlement to TDIU for a veteran with multiple service-connected disabilities.” See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). To the contrary, the need for such an examination report or opinion “with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by [the AOJ] or the Board.” Id. In the instant case, no combined-effects examination or opinion is necessary with respect to the Veteran’s TDIU claim as the evidence discussed above, to include the Veteran’s previous VA examinations, when viewed in its entirety, allows for a fully informed decision. In short, the Board finds that the Veteran’s service-connected disabilities did not render him unemployable prior to December 24, 2019. Accordingly, entitlement to a TDIU for the period on appeal prior to December 24, 2019 is not warranted and the claim is denied. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.