Citation Nr: 21021253 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 08-08 733 DATE: April 12, 2021 ORDER For period prior to August 18, 2009, a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected back disability prior to August 18, 2009. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis prior to August 18, 2009, are 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 had active military service from May 1976 to December 1997. In April 2015, the Veteran testified in a Board videoconference hearing regarding TDIU. A copy of the hearing transcript is of record. Thereafter, in September 2015, the Board remanded the case. In September 2020, the Board again remanded the Veteran’s claim for TDIU for referral to VA’s Director of Compensation Service for extraschedular consideration. In November 2020, the Director determined that a TDIU was not warranted on an extraschedular basis. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the denial of an extraschedular rating on appeal. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). For the reasons discussed further below, the Board finds that TDIU on an extraschedular basis is warranted prior to August 18, 2009. The Veteran asserts that he has been precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected heart disability. Under 38 C.F.R. § 4.16(a), a total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. Veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage requirements for eligibility for a TDIU under 38 C.F.R. § 4.16(a), may be considered for a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In this case, the Veteran does not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) at any time during the period on appeal. Prior to August 18, 2009, the Veteran’s combined evaluation was 80 percent based on: depression rated as 30 percent; coronary artery bypass rated as 30 percent; intervertebral disc syndrome rated as 20 percent; residuals of a thumb injury rated as 10 percent; hypertension rated as 10 percent; skin rash rated as 10 percent; left lower extremity scar rated as 10 percent; left upper extremity scar rated as 10 percent; and thoracotomy scar rated as 10 percent. Turning to the evidence, in his April 2007 application for a TDIU, the Veteran stated that he stopped working full-time in February 2006. In the application, he noted that his work experience since separation from service in 1997 was working as a chef. He had three years of college education (2000 to 2003) and had two years of training in culinary arts (2003 to 2005). Medical records show that the Veteran’s heart disability causes pain, weakness, shortness of breath and fatigue. In this regard, an August 2006 VA examination report includes the Veteran’s complaint of chest-wall pain, shortness of breath, dizziness, and fatigue with walking. The Veteran reported that these symptoms would occur intermittently once a day and last for a few minutes. Similar findings were reported when examined by VA in July 2007. In December 2004, the Veteran underwent five vessel coronary bypass surgery. January 2007, he underwent a left heart catheterization with coronary angiography, saphenous vein graft, angiography x 2, left internal mammary graft angiography, and left ventriculography. In February 2007, the cardiac heart specialist who performed the surgery noted that the Veteran should be considered totally and permanently disable. Notably, he reported that the Veteran “is not a suitable candidate for return to full time working status, nor is he really a candidate for job retraining giving the magnitude of his coronary disease burden." He further noted that the fact that the Veteran is able to exercise in the artificial setting of a stress test does not negate the fact that he has reproducible, provokable ischemia and that a full work day including time stress and high temperatures as well as the physical exertion involved in his current occupation as chef are more than he can reasonably be expected to perform. During the April 2015 Board hearing, the Veteran reported his symptoms of disability cause pain, weakness, shortness of breath and fatigue. He stated that he tried working after his heart surgery in December 2004, but he only lasted three months. He also reported that worked again in 2005 as a chef, but he ultimately stopped working as a chef because of his heart disability. A September 2020 referral letter recommended against granting TDIU on an extraschedular basis prior to August 18, 2009. The letter indicated that if TDIU on an extraschedular basis was denied, then TDIU would be granted effective August 18, 2009. In October 2020, the Director concluded that entitlement to extraschedular TDIU was not warranted as the Veteran's service-connected disabilities would not prevent the ability to obtain or maintain employment. After review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining gainful occupation for the rating period on appeal prior to August 18, 2009. (Continued on the next page)   In this regard, the Board notes that in a recent precedent decision, in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Here, the Veteran indicated that his chef position was fast-paced, high stress and required longstanding high temperatures, which were severely impacted by his service-connected heart disability. This is supported by the medical and lay evidence of record as discussed above. Therefore, resolving all doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis prior to August 18, 2009, is warranted and the claim is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.