Citation Nr: 21021508 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-40 984 DATE: April 13, 2021 ORDER A rating of 60 percent, but no higher, for residuals of a left side thoracotomy is granted. A total rating based on individual unemployability (TDIU) is granted effective February 21, 2017. REMANDED Entitlement to TDIU prior to February 21, 2017 is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of a left side thoracotomy were more nearly approximated by no worse than FEV-1 of 53 percent during the entire period on appeal. 2. The Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from February 21, 2017 onward. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 60 percent, but no higher, for residuals of a left side thoracotomy are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.56, 4.97, Diagnostic Codes (DC) 6843. 2. The criteria for TDIU are met since February 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1984 to October 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in March 2019. A transcript is of record. In August 2019, this matter was remanded by the Board for additional development, to include an examination. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for and underwent an examination for his remanded claim. The Veteran raised the issue of TDIU in submitted records, such as an March 2021 brief. The issue of TDIU is part and parcel of a claim for a higher evaluation, and there is evidence his service-connected disability causes his inability to work. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, the issue of the Veteran’s entitlement to TDIU is properly before the Board.   Increased Rating 1. Entitlement to a rating in excess of 10 percent for residuals of a left side thoracotomy prior to December 11, 2019 and 60 percent thereafter. The Veteran received a 10 percent rating for his disability prior to December 11, 2019, and 60 percent thereafter under Diagnostic Code 6843. The RO increased the rating to 60 percent in an August 2020 rating decision. This appeal stems from a claim for increased rating, received on February 14, 2014. 02/14/2014 VA 21-526EZ. Under Diagnostic Code 6843, a 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent; or DLCO (SB) 66 to 80 percent predicted. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) 56 to 65 percent predicted. For a rating of 60 percent, FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent; or DLCO (SB) 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min *with cardiorespiratory limit). Lastly, a 100 percent rating is when FEV-1 is less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6843. Additionally, under 38 C.F. § 4.97, Diagnostic Code 6845, the notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Significantly, Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97. The Veteran underwent an examination in March 2014. Pulmonary function testing (PFT) was performed. He had FVC of 91 percent predicted; FEV-1 of 96 predicted; FEV-1/FVC of 107 percent; and DLCO of 82 percent predicted. The examiner reported that the test that most accurately reported the Veteran’s disability was DLCO. Pre-bronchodilator results were normal. Exercise capacity testing was not performed. In December 2019, he participated in an additional examination. He used daily inhalational bronchodilator therapy, but did not require outpatient oxygen therapy. Pulmonary function testing (PFT) was performed. He had FVC of 50 (47 post-bronchodilator) percent predicted; FEV-1 of 53 predicted (50 post-bronchodilator); FEV-1/FVC of 106 percent (107 post-bronchodilator). Exercise testing was not performed. The examiner reported that the test that most accurately reported the Veteran’s disability was FEV-1 percent predicted. The examiner reported that the Veteran had been unemployed since 2012 and that he had pain with deep breathing, exertion, straining, and lifting. His most recent examination is from August 2020. He used daily inhalational bronchodilator therapy, but did not require outpatient oxygen therapy. An October 2020 addendum addressed the Veteran’s left-sided muscle contentions. While it was reported that his left side was affected, the clinician determined that the findings were due to the Veteran’s non-service connected left shoulder osteoarthritis. The Veteran asserted that he believed his PFT was worse than what was reported at the 2014 examination. He testified at a Board hearing in March 2019. He reported breathing problems at night. He was unable to exert himself because of breathing difficulty. He had a sharp shooting pain and chronic cough. VA records show spirometry results. In July 2017, he had FVC of 89 percent; FEV-1 of 100 percent; FEV-1/FVC of 113 percent. In March 2019, he had FVC of 81 percent and FEV-1 of 84 percent. After review of the competent and probative evidence, the Board finds that a rating of 60 percent, but no higher, is warranted for the entire period on appeal. At the December 2019 examination his FEV-1 was 53 percent which warrants a 60 percent rating. The Board acknowledges that at other times he has had better PFT testing, However, the Veteran has been consistent in his assertions that his testing was worse than had been reported. In this regard, his PFT testing has fluctuated during the period on appeal. In particular, his FEV-1 at the 2014 examination was 96; but improved to 100 percent in July 2017, then dropped to 84 percent in March 2019, and finally 53 percent in December 2019. Additionally, he has remained consistent during the period on appeal that he has difficulty sleeping because of shortness of breath and his impairment with physical exertion. The Board finds his consistency throughout the period on appeal lends to greater credibility. Therefore, when resolving reasonable doubt in favor of the Veteran, a rating of 60 percent is warranted for the period on appeal. The Board has considered whether a rating under DC 6845 is warranted. However, the examiner explained that the Veteran’s left side muscle difficulties were due his non-service connected arthritis. There is no competent evidence to suggest otherwise. A rating of 100 percent is not warranted. In this regard, the competent and probative evidence of record does not tend to show FEV-1 less than 40 percent of predicted value, or; the FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; outpatient oxygen therapy. He has had FEV-1 of 53 percent or greater during the period on appeal. As such, a rating of 100 percent is not warranted. 2. Entitlement to a TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, “if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability.” Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective February 21, 2017, the Veteran’s service-connected disabilities are now rated as: residuals of a thoracotomy for left side pneumonectomy at 60 percent (effective February14, 2014); tender left thoracotomy scar at 10 percent; and tinnitus at 10 percent. He has a combined 70 percent rating from February 21, 2017 onward. Therefore, his evaluation for compensation due to his service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from February 21, 2017 onward. The evidence of record tends to show the Veteran last worked in 2012, to include as reported by the examiner in August 2020. However, the Veteran’s VA 21-8940 shows he last worked in 2004 in a sales position as a promotional manager. He has some college education as well as some graphic art training. He has training in information technology. He testified at a Board hearing in March 2019. He explained that his disability prevents any physical exertion because of shortness of breath. He also stated that sitting upright causes him to cough and lose his breath. He has to lay down on his side due to the pressure and pain. The August 2020 examiner reported that Veteran’s functional impact from his pneumothorax disability would preclude climbing, walking, or any physical work. In this case, the record reflects that the Veteran’s service-connected pneumothorax disability has hindered his ability to maintain gainful employment from February 21, 2017 onward. TDIU prior to February 21, 2017 is addressed in the remand section below. The evidence of record shows the Veteran has significant difficulty with breathing. The 2020 examiner reported that the Veteran’s disability would prevent any physically intensive positions. Additionally, the Veteran has testified that sitting upright for extended periods causes pain and shortness of breath. He then needs to rest to help alleviate his symptoms. The Board finds that his disabilities would prevent employment in either a physical position or sedentary. His shortness of breath occurs even when sitting upright which would prevent sedentary employment. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disability prevented him from being able to secure or follow a substantially gainful occupation from February 21, 2017 onward. An award of TDIU prior to this date is addressed in the Remand section below. REASONS FOR REMAND 1. Entitlement to TDIU prior to February 21, 2017 is remanded. The evidence of record tends to show the Veteran last worked in 2012. This decision grants TDIU from February 21, 2017 onward. However, TDIU is not in effect for the whole period and thus remains on appeal. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018).   Prior to that date, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). While the Veteran does have a service-connected disability over 40 percent (residuals of thoracotomy, 60 percent from February 14, 2014), his other service-connected disabilities (thoracotomy scar (tender) and thoracotomy scars (post), are rating 10 percent and noncompensable, respectively) do not combine to 70 percent. 38 C.F.R. § 4.25 (2020). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). There is competent evidence suggesting that he was unable to work due to his service-connected disabilities prior to February 21, 2017. See, e.g., 8/13/2020, C&P Examination – IR – LT Residual, at p. 11. As such, the Board will remand this this matter for referral to the Director, Compensation Service. This matters is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This is to include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of the TDIU matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities, especially focusing on the period prior to February 2017. (CONTINUED ON THE NEXT PAGE)   3. Refer the Veteran’s request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to February 21, 2017. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.