Citation Nr: 21016089 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-43 548 DATE: March 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities, without consideration of his age or non-service-connected disabilities, did not prevent the Veteran from obtaining and maintaining substantially gainful employment at any time during the appeal. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to December 1976. Entitlement to a TDIU The Board took jurisdiction of the issue of entitlement to a TDIU in its March 2020 decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), at which time the issue of an increased rating for supraventricular tachycardia was before the Board. That issue stemmed from a June 2010 claim. While the increased rating claim was decided, the TDIU issue was remanded for additional development. 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). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran’s service-connected disabilities include sleep apnea, rated as 50 percent from April 25, 2019, and supraventricular tachycardia rated as 10 percent from September 30, 2002 and 30 percent from June 3, 2010. The Veteran’s combined disability rating, therefore, is 70 percent from April 25, 2019. Accordingly, the Veteran did not qualify for a schedular TDIU prior to April 25, 2019, but did as of that date. Both periods are addressed below. In a September 2020 letter, the RO asked the Veteran to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to substantiate the Veteran’s claim for TDIU. However, the Veteran did not complete VA Form 21-8940 as requested in September 2020, as noted in the January 2021 Supplemental Statement of the Case (SSOC). While failure to complete the form is not fatal to a TDIU claim in and of itself, the Veteran’s failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “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). In Social Security Administration (SSA) records from January 2010, it was noted that the Veteran has received SSA disability benefits since December 2007. SSA disability benefits were based in part on the Veteran’s non-service-connected right carpal tunnel syndrome; residual effects of traumatic right-hand injury; cervicalgia; hearing loss; and chronic low back pain. His service-connected heart disability was also considered. Additionally, it was noted that the Veteran is a high school graduate and has completed business machine maintenance and industrial plant management vocational training. Furthermore, the Veteran indicated that he previously worked as a heavy equipment mechanic and an electrician helper prior to 2007. SSA records from May 2008 further note that the Veteran reported previously working as a heavy equipment mechanic, an industrial plant mechanic, and an industrial maintenance supervisor. The Veteran had an examination for his heart in October 2011. The examiner noted that the Veteran’s heart disability impacted his ability to function. The examiner noted that the Veteran experienced weakness or fatigue and that during an episode of SVT, the Veteran experienced generalized weakness, fatigue, diaphoresis, nausea, and light headedness. VA treatment records from October 2011 note that the Veteran was not employed and that his usual occupation was as a boiler technician. It was further noted that the cause of the Veteran’s unemployment was due to chronic pain issues, in particular his neck and back, and due to his supraventricular tachycardia condition. The Veteran had another examination for his heart condition in April 2012. The examiner noted that the Veteran’s heart disability impacted his ability to work. Specifically, the examiner indicated that the Veteran’s heart condition is tiring. Additionally, the examiner noted that the Veteran cannot get excited or aroused and increased physical activity will set off SVT. The Veteran had another examination for his heart disability in June 2018. The examiner noted that the condition comes and go, and that the Veteran could get into supraventricular tachycardia, triggered 2-3 times a week. The examiner stated that during an episode, the Veteran would get a rapid heartbeat, fainting, feeling hot, weakness, and gassy. The examiner noted that the Veteran’s heart disability impacts his ability to work, stating that his sudden attacks makes him unable to do any kind of work, including walking, sitting, or standing, and that he would have to lie down. In private treatment records from January 2020, Dr. J.F. indicated that the Veteran was not able to return to work for an indefinite period of time. The Veteran had an examination for his service-connected heart disability in March 2020. The examiner noted that the Veteran’s heart disability impacted his ability to work. The examiner stated that the Veteran had a METs level of >3-5 and that this METs level has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4mph). The Veteran had an examination for his sleep apnea disability in January 2021 (for which service connection was established effective in April 2019). The examiner noted that the Veteran’s sleep apnea disability impacted his ability to work. Specifically, the Veteran reported that his day to day responsibilities are hindered by his fatigue. The Veteran stated that he has been unemployed the past 17 years due to his heart issues and fatigue. The Veteran also stated that he gets upset by “drama”, which causes chest pains and difficulty breathing. Additionally, the Veteran stated that he has difficulty sleeping through the night and that the “CPAP has helped”. Given the totality of the record, the Board finds that the Veteran’s service-connected disabilities did not render him unemployable at any point during the appeal. While the record supports that symptoms of the Veteran’s supraventricular tachycardia and sleep apnea result in some occupational impairment, it does not show that he would be precluded from participation in regular substantially gainful employment. Although the June 2018 examiner indicated that the Veteran’s sudden attacks makes him unable to do any kind of work, the examiner also noted that the Veteran’s condition was intermittent and “comes and goes”. Accordingly, the probative evidence of record indicates that the Veteran would likely be able to work in a setting that does not require strenuous exertion. Furthermore, the evidence of record notes that he successfully completed business machine maintenance and industrial plant management vocational training. Additionally, the Veteran has reported prior work experience including a supervisory role, which would likely have some limited transferrable skills conducive to a less strenuous work environment. As a result, it is not shown that the Veteran’s service-connected disabilities preclude his participation in regular substantially gainful employment. The Board acknowledges the January 2020 opinion from Dr. J.F. indicating that the Veteran is unable to return to work. However, the Board finds that the opinion from Dr. J.F. lacks significant probative weight. Dr. J.F.’s opinion did not provide a rationale for his conclusion and it is not clear that the opinion is based solely on the Veteran’s service-connected disabilities of his heart and his sleep apnea. Accordingly, the January 2020 opinion does not carry significant probative weight. Furthermore, the Board recognizes that the Veteran has been in receipt of SSA disability benefits. 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). In this case, while the January 2010 SSA decision found him unable to work, it considered several non-service-connected disabilities, including right carpal tunnel syndrome, cervicalgia, hearing loss, and chronic low back pain, as well as the Veteran’s age, which are all factors that VA cannot consider. VA is limited solely to the service-connected disability when determining whether TDIU is warranted. Additionally, the issue of extraschedular consideration of a TDIU for the period on appeal prior to April 25, 2019 has been raised. Since the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for the beginning portion of the appeal period, from June 2010 to April 2019, that period may be considered only under 38 C.F.R. § 4.16(b) on an extraschedular basis. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In March 2020, the Board remanded the claim finding the Veteran provided some evidence sufficient to warrant referral to the Director, for extraschedular consideration of a TDIU. In a January 2021 determination, the Director considered the Veteran’s record and concluded that the evidence of record does not demonstrate that the Veteran’s service-connected disabilities prevents employment. The Director noted that the Veteran had previously been a heavy equipment mechanic and was on SSA disability benefits. The Director further noted that the record indicated that the Veteran had chronic back problems causing impairment. The Director further noted that in 2008 the Veteran’s private physician noted that the Veteran was unable to work due to his back. The Director indicated that the Veteran’s SSA disability benefits were based in part on non-service-connected disabilities, including his back condition. Additionally, the Director stated that while it is noted that the Veteran’s heart condition could impact labor-intensive occupations, the most recent examination notes the Veteran had a METs level consistent with activities such as light yard work, lawn mowing, and brisk walking up to 4 mph. The Director concluded that the medical history does not support entitlement to a TDIU benefit on an extraschedular basis. Ultimately, the evidence of record failed to support that the Veteran’s service-connected disabilities caused an exceptional situation that prevented gainful employment. The Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In this case, the Board agrees with the determination of the Director, that an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted in this case. While it appeared at the time of the Board’s March 2020 remand that the heart disability may prevent working on a more permanent basis, subsequent evidence, particularly the March 2020 VA examination, clarified the record on that score. While there is evidence that the Veteran has limited mobility due to his service-connected disabilities, the preponderance of the evidence is against the claim. The record has not demonstrated that the Veteran’s service-connected disabilities are so severe that they preclude an ability to secure and follow gainful employment. Therefore, the claim is denied. Bethany L. Buck 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.