Citation Nr: 21020798 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 12-34 628 DATE: April 8, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability by reason of service-connected disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to September 1967. The Veteran’s claim for TDIU was received in March 2011. The Veteran reported on his March 2011 claim form that he had a college education, that he had been the owner/president of a printing company, and that he became too disabled to work on May 15, 2007 when he had a stroke. The Veteran also asserted that he was unable to work due to his service-connected ischemic heart disease. A total rating based on unemployability may be granted if a veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Since January 2011 the Veteran has been service-connected for coronary artery disease (CAD) rated at 60 percent, post-traumatic stress disorder (PTSD) rated at 30 percent, and for scars rated as noncompensable. The combined rating for the Veteran’s service-connected disabilities is 70 percent. The Veteran’s service-connected disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). A February 2011 VA fee basis examination report noted that the Veteran was limited to slow walks with the dog. He was capable of minimal stairs and minimal lifting. He was fatigued with very limited endurance. On VA examination in May 2011 the Veteran’s ejection fraction was noted to be between 65 and 70 percent. He had had a coronary artery bypass graft (CABG) in 2008. He had had a stroke in July 2007. For exercise it was noted that the Veteran walked his dog for 15-30 minutes once a day. His gait was normal but he felt unsteady. He sometimes used a cane to go for longer walks. He could go up 15 steps before he fatigued and got short of breath, needing a rest. He could help with vacuuming. The Veteran had dyspnea on exertion with no chest pain. The examiner opined that the Veteran’s CAD limited the Veteran’s ability to do physical labor beyond a capacity equivalent to light work. She said that from a heart perspective the Veteran would be able to do sedentary work easily. She noted that it was the Veteran’s cognitive disability from his stroke that was his biggest limiting factor for employability. On VA PTSD examination in May 2011 the examiner noted that the Veteran’s thought processes and communication were impaired by his stroke. He stated that the Veteran’s social functioning was mildly impaired by his PTSD. The examiner noted that the Veteran’s employment was not impacted due to psychiatric issues. He noted that after Vietnam the Veteran did not miss work or miss appointments and that he completed a bachelor’s degree in addition to being vice president of one company and owning another. The examiner noted that the Veteran stopped working solely due to the effects of a stroke in 2007 and not due ot his PTSD. The examiner stated that the Veteran was employable even with the PTSD until the time of the stroke. In a December 2012 letter, the Veteran’s spouse, a retired home care nurse, asserted that the Veteran’s stroke was secondary to the Veteran’s ischemic heart disease. A November 2017 VA cardiac examination report notes that the Veteran received cardiology checkups about every two years. The Veteran denied any chest pain. The Veteran got out for walks daily but he got short of breath due to chronic obstructive pulmonary disease (COPD). He was oxygen dependent due to his COPD. The Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The examiner noted that the Veteran had no restrictions due to CAD for light work or sedentary work. There were also no restrictions on the Veteran for driving or walking due to CAD. In January 2018 a VA clinician opined that the Veteran’s stroke was less likely than not proximately due to or the result of coronary artery disease status post coronary artery bypass graft. She noted that the Veteran had a completely normal cardiac echo examination which was done on May 15, 2007 to seek the source of the stroke embolism and that cardiac echo was completely normal with no evidence of cardiac damage or disease at that time. In June 2018 the Veteran submitted a letter from his private physician. The physician stated that there is a very strong relationship between ischemic cardiac and vascular disease and ischemic stroke and carotid disease. She opined that the Veteran’s tendency to have one contributed to the other. On VA examination in July 2019 the Veteran was noted to have CAD status post CABG. His ejection fraction was 63 percent. The examiner opined that it was less likely than not that the Veteran’s stroke was caused or aggravated by the Veteran’s coronary artery disease. The VA examiner noted that the etiology of the Veteran’s stroke was atherosclerotic vascular disease. He further noted that the etiology of the Veteran’s CAD is atherosclerotic sclerotic vascular disease. He then opined that CAD does not cause or aggravate atherosclerotic vascular disease of the carotids/brain. The Veteran and his spouse provided testimony at a Travel Board hearing in April 2018. The Veteran’s spouse stated that she is a registered nurse and that it was her professional opinion that the Veteran’s stroke was a result of his CAD. She also asserted that even without considering the stroke, the Veteran’s service-connected PTSD and CAD made the Veteran unemployable. (Continued on the next page)   The Board acknowledges that the Veteran’s spouse, a registered nurse, is a medical professional and that she has some expertise in providing an opinion regarding the etiology of the Veteran’s stroke. Additionally, in June 2018 a private physician opined that that there is a very strong relationship between ischemic cardiac and vascular disease and ischemic stroke and carotid disease. However, there are VA examination reports that more thoroughly describe the Veteran’s medical history and that contain more detailed supporting rationales for their opinions that the Veteran’s stroke is not caused or aggravated by his CAD. Regardless, the fact remains that a now final January 2018 rating decision denied the Veteran’s claim for service connection for his stroke, including on a secondary basis to CAD. The issue of whether the Veteran’s stroke was caused or aggravated by the Veteran’s service-connected CAD is not currently before the Board. The appeal to be decided by the Board in this decision is whether the Veteran is totally disabled due to his service-connected disabilities. As noted above, the Veteran’s service-connected disabilities consist of CAD, PTSD and noncompensable scars. The Board must determine whether these service-connected disabilities render the Veteran unemployable without consideration of the Veteran’s nonservice-connected disabilities such as the Veteran’s stroke and his COPD. The Board notes that the Veteran has the option of submitting a request to the agency of original jurisdiction (AOJ) that his claim for service connection for residuals of a stroke be reopened if he wishes VA to again consider such contentions. The Veteran and his spouse do assert that the Veteran is unemployable solely due to his service-connected CAD and PTSD. The Board finds that the VA medical examination reports indicating that the Veteran is not unemployable solely due to his CAD and PTSD are more probative than the statements and testimony of the Veteran and his spouse. As noted above, the Veteran’s most limiting medical conditions are his residuals of a stroke and his COPD. The May 2011 VA cardiac examiner noted that the Veteran walked his dog and helped with vacuuming. She further indicated that the Veteran’s CAD symptoms did not interfere with the Veteran’s capability to do light work and sedentary employment. The November 2017 VA examiner noted that the Veteran denied experiencing symptoms attributable to a cardiac condition, with any level of physical activity. The examiner further noted that the Veteran had no restrictions due to CAD for light work or sedentary work. Additionally, the May 2011 PTSD examiner discussed the Veteran’s work history and opined that the Veteran’s employment was not impacted due to psychiatric issues. The above indicates that the most probative evidence does not show that the Veteran has been unable to maintain substantially gainful employment due to his service-connected disabilities at any time during the appeal period. Therefore, the preponderance of the evidence is against the Veteran’s claim and a TDIU is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.