Citation Nr: 21013449 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-58 610 DATE: March 9, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to October 18, 2019, on an extraschedular basis, is denied. FINDING OF FACT Prior to October 18, 2019, the evidence of record does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to October 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S Army from January 1967 to December 1968. The issue is on appeal from a December 2013 rating decision and has been remanded by the Board of Veterans’ Appeals (Board) in December 2018 and October 2020 for additional adjudication. Entitlement to a TDIU prior to October 18, 2019, on an extraschedular basis The Veteran seeks entitlement to a TDIU prior to October 18, 2019 due to his service-connected disabilities, on an extraschedular basis. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to October 18, 2019, the Veteran has established service connection for diabetes mellitus, type II at 20 percent disabling; surgical scars, chest, upper abdomen, and left lower extremity associated with coronary artery disease status post CABG with atrial fibrillation requiring pacemaker at noncompensable; and coronary artery disease at 30 percent disabling until January 16, 2014, 100 percent disabling from January 16, 2014 to April 1, 2014, 30 percent disabling from April 1, 2014 to October 18, 2019. The combined disability rating is 40 percent until January 16, 2014; 100 percent from January 16, 2014 to April 1, 2014; and 40 percent from April 1, 2014 to October 18, 2019. Therefore, the minimum schedular criteria for a TDIU, under 38 C.F.R. § 4.16(b), are not met. Initially, the Board notes that the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU or the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, even though the combined disability rating is 100 percent for the period of January 16, 2014 to April 1, 2014, this exception is inapplicable because the Veteran is not seeking special monthly compensation at the house bound rate, and the record does not otherwise reasonably raise this matter. Thus, a claim for a TDIU for this period in the appeal is moot. The Veteran has not met the schedular percentage requirement for the entire appeal period, however, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b), under an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). As such, a review by the Director of the Compensation and Pension Service was requested for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Although the Board is required to obtain the Director of Compensation Services decision before awarding extraschedular TDIU benefits in the first instance, it 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). For the reasons discussed below, the Board finds that throughout the appeal period, the evidence does not indicate that a TDIU on an extraschedular basis is warranted. The Veteran’s VA Form 21-8940 demonstrates finishing two years of college and past occupations as an ophthalmic technician, diving instructor, and charter boat captain. He last worked full-time in 2002 and became too disabled to work in 2005. For the period prior to October 18, 2019, VA medical records reveal opinions explicitly stating that diabetes mellitus and coronary artery disease caused some functional limitations; and that he was fully capable of successfully executing normal daily activities without assistance. Notably, the Veteran was afforded multiple VA examinations throughout the appeal period due to his service-connected diabetes mellitus II and coronary artery disease, and at no point were his service-connected disabilities found to preclude the Veteran from performing light physical or sedentary employment. The Veteran lived alone and was capable of maintaining his home and yard, going grocery shopping, and preparing his own meals. In a December 2013 addendum, an examiner who had conducted a VA examination for the Veteran’s coronary artery disease clarified that the Veteran should be able to work in most occupational environments where he is not in danger of severely cutting himself as his blood thinner could put him at a higher risk. As highlighted by the examiner, the Veteran reported that he was capable of “doing whatever he wanted without limitations,” that he is very active, and that his planned scuba trip had been approved by his cardiologist. The examiner explained that actual medical clearance is needed for recreational diving, so it is easy to be disqualified based on a medical condition, especially if one has a heart condition or atrial fibrillation, as the Veteran does. That the Veteran’s treating cardiologist approved the Veteran’s recreational diving is indicative of the lack of limitations posed by his coronary artery disease. Overall, the examiner stated the Veteran was not very limited as far as physical or sedentary work was concerned. The Veteran was afforded a VA examination in April 2016 for his coronary artery disease. The examiner stated that per the Veteran’s own report, extreme physical activity would most likely result in shortness of breath or fatigue. The examiner opined that activities which could put the Veteran at an increased risk of potentially life-threatening bleeding or those which involved remote travel with prolonged time away from facilities for lab monitoring should be avoided due to his Warfarin therapy for atrial fibrillation. A February 2018 VA cardiology consult revealed the Veteran kayaked every other week without problems; he had kayaked the day before his consult for 15 miles without any problems. In December 2020, the Executive Director of Compensation Service reviewed the Veteran’s claims file and rendered an unfavorable decision. She noted that his service-connected conditions did not preclude light physical or sedentary employment as physical activity resulted in fatigue. Although she conceded that his service-connected conditions did cause functional limitations, they did not cause an inability to obtain or maintain gainful employment. Therefore, the Director found that as the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effect of the disabilities prevented employment, entitlement to a TDIU on an extraschedular basis was not established. The Board finds the medical evidence, including VA examinations afforded throughout the appeal period, indicates that the Veteran’s service-connected coronary artery disease impacts his ability to perform employment tasks where he could be cut, as his medication could cause life-threatening bleeding; or require prolonged travel away from facilities with lab monitoring of his atrial fibrillation. Therefore, the Veteran is not precluded from all employment, nor is he prevented from performing his most recent occupation in the appeal period as a dive instructor, as indicated by the medical clearance given by his treating VA cardiologist. Furthermore, VA examiners have collectively concluded that the Veteran’s service-connected disabilities do not preclude him from light physical or sedentary employment. Finally, from the Veteran’s own account, despite the manifestations of his service-connected disabilities, he is capable of physical exertion required to kayak for 15 miles in a day, with no issues; successfully executing daily activities needed for living; and being generally very active. In denying the Veteran’s TDIU claim, the Board has considered the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16(b). The Board concludes that the evidence supporting an award of a TDIU rating on the basis that the Veteran could not work due to his service-connected disabilities is outweighed by the negative evidence of record discussed above. In sum, the Board finds that the evidence of record does not show that the Veteran is precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant a TDIU on an extraschedular basis, for the appeal period prior to October 18, 2019. As such, the preponderance of the evidence is against the Veteran’s claim and benefit of the doubt rule does not apply. Therefore, an extraschedular TDIU prior to October 18, 2109 is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.