Citation Nr: 21014985 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-39 239 DATE: March 16, 2021 ORDER From June 27, 2013, to August 30, 2018, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the award of monetary benefits. FINDING OF FACT From June 27, 2013, to August 30, 2018, the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW From June 27, 2013, to August 30, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1967 to December 1968, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and Vietnam Service Medal. This matter originates from an April 2014 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran died in December 2018 and the appellant is his surviving spouse. In February 2019, the Board dismissed the claim for a TDIU as the Veteran had died during the pendency of the appeal. The Veteran’s spouse subsequently submitted VA Form 21-0847, Request for Substitution, in April 2019. VA granted the appellant’s request for substitution in May 2020. Thus, this claim has been returned to the Board for further consideration. TDIU 1. Entitlement to a TDIU from June 27, 2013, to August 30, 2018, is granted. A TDIU 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 because of a single service-connected disability ratable at 60 percent or more, or because of 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). Here, the Veteran has met the preliminary schedular criteria for a TDIU since February 11, 2013. During this time, he was service-connected for coronary artery disease at 60 percent, bilateral hearing loss at 30 percent, and tinnitus at 10 percent. His combined rating was 80 percent, such that the schedular criteria have been met since that time 38 C.F.R. § 4.16(a). However, the record reflects that the Veteran maintained two part-time positions through June 2013. See February 2014 VA Form 21-4192 (listing June 8, 2013, as the Veteran’s termination date); March 2014 VA Form 21-4192 (with attachment listing June 26, 2013, as the Veteran’s termination date). On his June 2013 application for benefits, the Veteran reported an estimated monthly income from these positions of approximately $1,600, per month. The Board has contemplated this reporting against the Poverty Thresholds as provided by the U.S. Census Bureau for 2013, and finds that the Veteran’s employment through June 2013 was not marginal. 38 C.F.R. § 4.16(a); Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited March 9, 2021). There is also no evidence that these positions constituted a protected environment. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). As such, a TDIU cannot be awarded in this case until June 27, 2013, corresponding with the last date of the Veteran’s gainful employment. The central inquiry is now “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability” since June 27, 2013. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. The Veteran’s June 2013 TDIU application shows that he completed four years of a high school education; his previous occupation was as a mechanic. He held that position from June 1974 to September 2003. In February 2004, the Veteran began working part-time as a driver for the same auto company. He worked in that role until June 2013, for approximately 15 hours a week. The Veteran reported that during the same timeframe, he worked as a driver for an auto auction company for an additional eight hours a week. He reported that he stopped working due to his service-connected cardiac and audiological disabilities. His employment verification form (VA Form 21-4192) stated that he resigned from the auto company due to an unidentified disability; a reason was not provided for the Veteran’s termination from the auto auction company. The Veteran contended that he was precluded from physical types of employment due to his service-connected disabilities. His representative then argued that there was no indication the Veteran had performed any sedentary work during his career or was qualified to do so. On this point, the Veteran submitted multiple expert opinions from his private physicians. An August 2013 statement from Dr. K. S. stated that the Veteran could not return to work until medically stable due to medical reasons. Dr. F.A. submitted an August 2013 statement stating that the Veteran was unable to work due to cardiac reasons. Dr. G. B. submitted a statement dated January 2015, indicating that he had evaluated the Veteran and he was unable to return to work until his heart rate was under control. Dr. F. A. then submitted additional statements. In January 2015, Dr. F. A. reported that the Veteran was unable to return to work due to atrial flutter; in March 2015, Dr. F. A. stated the Veteran was unemployable due to his cardiac symptoms. In February 2016, Dr. F. A. stated that the Veteran was evaluated and had two ablations and cardioversion for atrial fibrillation, for which he was very symptomatic. Due to the Veteran’s cardiac condition, he was unable to work. The Veteran also underwent multiple VA examinations for his disabilities. During June 2013 cardiac examination, the examiner concluded that the Veteran’s cardiac disability did not impact his ability to work. In April 2014, the Veteran underwent additional VA examination for his cardiac disability. He reported his disability had worsened at that time, due to increased dyspnea on exertion and recently diagnosed atrial flutter and atrial fibrillation. The Veteran stated at his prior VA examination in June 2013 that he was working part-time, but at the time of the April 2014 VA examination, he was unable to work due to extreme fatigue, shortness of breath, and dyspnea on exertion. The VA examiner concluded that after reviewing the records and performing an examination, the Veteran had physical functional impairment that would impact his ability to perform active physical employment due to his service-connected cardiac disability. The VA examiner reported that the Veteran would be unable to walk or exercise for prolonged periods of time, or perform moderate to strenuous physical labor due to increasing dyspnea on exertion, fatigue, chest pain, and dizziness. The VA examiner noted that the Veteran could perform sedentary employment. The Veteran underwent an April 2014 VA examination for his hearing loss and tinnitus. The VA examiner noted that his hearing loss impacted the Veteran’s ordinary conditions of daily life, including the ability to work. The VA examiner noted that the Veteran had trouble understanding people in conversation; background noise made it difficult for him to hear; and his tinnitus kept him from sleeping. The Veteran’s VA treatment records consistently reflect that his cardiac disability was asymptomatic. These records also indicate that he saw a private cardiologist; however, his private treatment records have not been associated with the claims file. In considering the above, the Board acknowledges that there is evidence which weighs against the claim. First, the Veteran’s VA treatment records consistently classified his cardiac disability as asymptomatic. However, the Veteran’s private treatment records directly contradict these findings, and establish that he routinely demonstrated symptoms which limited his functioning, including dyspnea on exertion, fatigue, chest pain, and dizziness. Such private assessments were seemingly offered by the Veteran’s primary physicians, upon contemporaneous and continued evaluations of the Veteran and with consideration as to his competent lay testimony regarding his symptoms and their impact on his functioning. Accordingly, the private statements are afforded greater probative value in this case and it is found that his cardiac disability was symptomatic during the period on appeal. Further, the June 2013 VA examiner concluded that the Veteran could perform sedentary work despite his cardiac disability. However, such a finding must be weighed against the Veteran’s level of education, lack of special training, and previous work history. In engaging such an analysis, the Board finds that the Veteran’s background did not reasonably position him for sedentary employment. Critically, the Veteran lacked any education, training, or experience relevant to sedentary employment in his field. Moreover, his private physicians repeatedly concluded that his cardiac disability rendered him completely unable to work, without any definitive statements regarding his capacity for sedentary employment. Additionally, his combined audiological disorders made it difficult for the Veteran to engage in conversation with others or hear due to background noise. Viewing the evidence in a light most favorable to the appellant, the Board finds that the Veteran’s service-connected disabilities precluded him from gainful employment from June 27, 2013. During this time, he showed such active cardiac symptomatology as to prevent him from physical employment, and he lacked any specialized training to position him for sedentary employment. The appeal is granted to this extent. However, a TDIU may not be awarded beyond August 30, 2018. Effective this date, the Veteran was awarded separate 100 percent ratings for service-connected metastatic lung cancer to the spine, and lung cancer, in addition to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) (due to lung cancer rated at 100 percent and the additional service-connected disability of metastatic lung cancer independently rated at 60 percent or more). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Given the above noted awards from August 30, 2018, the matter of the Veteran’s entitlement to a TDIU from that date forward has been rendered moot. [CONTINUED ON NEXT PAGE] In sum, the Veteran was unable to obtain substantially gainful employment due to his service-connected disabilities from June 27, 2013, to August 30, 2018, and the appeal seeking entitlement to a TDIU is granted as set forth herein. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.