Citation Nr: 21014100 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-07 894 DATE: March 11, 2021 ORDER Effective March 29, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. A rating in excess of 60 percent for coronary artery disease (CAD), status post coronary artery bypass graft, is dismissed. FINDINGS OF FACT 1. Since March 29, 2012, the record reasonably shows that the combination of the Veteran’s service-connected disabilities precludes him from securing or following a substantially gainful occupation. 2. On December 18, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of his CAD issue is requested. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. 2. The criteria for dismissal of CAD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1979 to February 1996. In December 2019 and 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in March 2020 and remanded for additional development. Following the December 18, 2020 Board hearing at which the Veteran’s representative testified as to his TDIU and increase rating for CAD claims, his attorney on December 22, 2020 filed a VA form 10182 including the Veteran’s CAD issue as an AMA issue. The most recent SSOC was issued on September 1, 2020, and thus the December 22, 2020, 10182 is not timely as to the IR heart issue. See 38 C.F.R. § 3.2400(c)(2) and 38 C.F.R. § 19.52(b). In addition, since the Board previously remanded the heart disability issue in a legacy appeal, the issue remains in legacy because the September 1, 2020 rating decision did not constitute an initial decision in AMA for this issue. Thus, the Board will adjudicate this issue in accordance with the requested dismissal in the December 2020 Board hearing. See BVA Hearing transcript (December 2020). In a December 2020 BVA hearing, the Veteran’s representative indicated that a grant of TDIU would satisfy the appeal and thus withdrew his CAD appeal. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant through his authorized representative, has withdrawn this CAD issue and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue of CAD and it is dismissed. TDIU The Veteran initiated this appeal on April 12, 2012. The Veteran last worked on March 28, 2012, and he seeks a grant of a TDIU effective March 29, 2012. The Veteran reported that he is entitled to TDIU benefits due to him not being able to secure or follow any substantial gainful occupation since he became too disabled to work on March 2012. See Veteran’s VA 21-8940 (April 2012). In support, the Veteran’s stated that he could not work due to his service-connected disabilities. See BVA Hearing transcript (December 2019). Additionally, on August 2020 a VA examiner stated that the Veteran’s service-connected conditions impact his ability to work. See VA medical examination (September 2020). Indeed, the record since 2012 shows the great limitations and modifications required for the Veteran to have the opportunity to have a possible sedentary job. See VA medical examination (June 2012). The Veteran completed four years of high school and no additional education. He worked as a bus operator and mailman. 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. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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. See 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 e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); 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 Veteran’s service-connected disabilities satisfy the TDIU schedular criteria. Here, the Veteran has a 60 percent rating for CADs effective March 2020, a 30 percent rating for total right knee replacement effective October 2014, a 30 percent rating for total left knee replacement effective November 2017, a 10 percent rating for left scrotum furunculosis effective March 1996, a 10 percent rating for hypertension effective January 1998, a 10 percent rating for left hallux valgus effective July 2010, a 10 percent rating for right hallux valgus effective July 2010, and non-compensable rating for right foot scars right inguinal herniorrhaphy effective July 2010. Thus, the Veteran’s service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a). After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran’s service-connected conditions precludes him performance of substantially gainful employment. His record clearly indicates the severity of his service-connected disabilities, including medical treatments, surgical and non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the 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, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, “VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran’s] ability to engage in substantially gainful employment.” Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his general education and labor-intensive occupational experience. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the disabilities does render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted effective March 29, 2012, the day he became too disabled to work. 38 C.F.R. § 3.400. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.