Citation Nr: 21021661 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-46 398 DATE: April 13, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) for the appeal period prior to August 11, 2017 is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment for the appeal period prior to August 11, 2017. CONCLUSION OF LAW The criteria for a TDIU for the appeal period prior to August 11, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1966 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board raised the issue of entitlement to a TDIU and remanded the matter to the RO for further development. More specifically, the Board directed the RO to provide the Veteran with an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) to complete and adjudicate the claim for a TDIU. In March 2019, the RO sent correspondence requesting the Veteran to submit a VA Form 21-8940. See March 2019 subsequent development letter. The Veteran did not respond, and the RO denied the Veteran’s claim in September 2019. The Veteran’s representative submitted support for the Veteran’s claim in December 2019, including the requested application. In August and September 2020, the RO sent subsequent development letters requesting more information related to the Veteran’s previous employment. Thus, the Board remanded the claim again in September 2020 because development was not complete. A December 2020 letter requested clarification regarding the Veteran's work history, specifically for the year 2014 as Social Security Administration records showed that he had earned approximately $13,000.00. The Veteran did not respond to that letter. A February 2021 supplemental statement of the case was issued further denying the Veteran’s claim. The Board has determined there has been substantial compliance with its previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The issue now returns to the Board. Entitlement to a TDIU prior to August 11, 2017 is denied. A TDIU has been reasonably raised by the evidence of record in this case, when the Veteran’s representative stated that the Veteran’s mobility, severe pain and physical limitations from his service-connected coronary artery disease makes him unable to maintain substantial gainful employment. See May 2017 Third Party Correspondence. Pursuant to Rice v. Shinseki, a TDIU claim cannot be considered separate and apart from an increased rating claim, but rather as part of a claim for benefits for the underlying disability. 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." See Rice v. Shinseki, supra. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board is mindful that under 38 C.F.R. § 4.16(a), marginal employment shall not be considered substantially gainful employment. Marginal employment shall be found if a veteran’s income does not exceed the poverty threshold established by the United States Census Bureau or, when income does exceed the poverty threshold, it may be shown on a facts found basis, which includes, but is not limited to, employment in a protected environment. Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Although VA has not defined what constitutes work “in a protected environment,” the Board nevertheless must consider its applicability on a facts found basis. “Substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As of the date of this decision, service connection is in effect for major vascular neurocognitive disorder, at 100 percent disabling beginning August 11, 2017; coronary artery disease at 10 percent disabling from April 10, 2012, and 60 percent disabling from October 14, 2015; homonymous hemianopsia, at 40 percent disabling from August 11, 2017; diabetes mellitus type II, at 20 percent disabling from January 10, 2018; residuals of stroke associated with diabetes mellitus type II, at 10 percent disabling from August 11, 2017; tinnitus, at 10 percent disabling from June 19, 2018; hypertension associated with diabetes mellitus type II, at zero percent disabling from January 20, 2016; and left ear hearing loss, at zero percent disabling from June 19, 2018. Prior to August 11, 2017, a single rating was 60 percent disabling for coronary artery disease beginning October 14, 2015. The criteria for consideration of TDIU pursuant to 38 C.F.R. § 4.16(a) have therefore been met throughout the period on appeal. Consequently, the remaining inquiry is whether the Veteran’s coronary artery disease render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background prior to August 11, 2017. In connection with his claim, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in December 2019. In such application, he indicated that all of his service-connected disabilities prevented him from securing substantially gainful employment. The Veteran did not report his schooling history or past employment training. With regard to the Veteran’s employment history, the Veteran reported that he last worked full-time in 2011 without specifying a month and date. He reported that he earned $1,500.00 a month as a director at parks and recreation in 2011 where he worked 32 to 40 hours a week. The Veteran reported his employment as a route carrier for a newspaper where he worked 30 hours in 2015 to 2016 earning $1,200.00 a month. He also reported his employment as a clerk at a store where he worked 20 hours a week in 2015 and 2016 earning $1,200.00 a month. Lastly, he reported his employment as a car transport at a dealership where he worked 16 hours a week from August 2016 to August 2017 making $150.00 a month. His employment for 2012, 2013 and 2014 was not reported and the Veteran did not report time lost from his illness. See December 2019 VA Form 21-8940. In May 2011, it was noted in the Veteran’s discharge summary for his coronary artery bypass surgery that he was instructed to restrict his activities. See February 2013 Medical Treatment Record. In an October 2015 VA examination for his heart condition, the examiner stated that the impact on the Veteran’s ability to work is light duty only with frequent breaks. In an April 2017 private medical opinion from Dr. H.S., the provider opined that it is as likely as not that the combination of pain and limitations caused by the Veteran’s service-connected impairments prevent him from being able to work. The provider stated that although the Veteran was working a part-time job driving cars for a dealership, he had been doing it for eight months and only making $150.00 a month. The provider noted that the maximum hours the Veteran worked a week was 16 hours but it was often much less than that and that the Veteran stated that he drove approximately 130 miles at the most and will stop and take frequent breaks to get out of the vehicle and walk around for about five minutes. The provider noted that the Veteran got frequent symptoms of shortness of breath and tightness in his chest, that he would be unable to stand for 45 minutes without needing not to lean on something, that he could only walk for 10 minutes unassisted and that would be required to miss work or leave early five or more days per month. The provider further noted that the Veteran had stated that he often had difficulty concentrating and staying focused due to worrying about his coronary artery disease and realized that he will not be able to keep a job working any longer than he does currently. In an October 2018 Mental Disorders Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran’s son had reported that the Veteran retired in 2011 and thereafter did part-time work including delivering newspapers and being a fleet driver, until he was debilitated by a stroke in August 2017. In a November 2019 private treatment record from Dr. H.H., the provider noted that a June 2017 Mental Disorders DBQ report had diagnosed the Veteran at the time with depression related to his heart condition and inability to work. The provider noted that another VA examination note in August 2017 had stated that the Veteran had issues with maintaining work due to his heart condition for several years however, it did not state a date or time, only that it was before the Veteran’s stroke. In a November 2019 statement from the Veteran’s son, he states that the Veteran could not walk for long without getting short of breath because of his coronary artery disease. The Veteran’s son stated that the Veteran could not do anything by himself, so they hired someone to assist him. The Veteran’s son noted that when the Veteran was working, he could not handle a full-time job because of his condition. The Veteran’s son noted that the Veteran could not do anything strenuous and just delivered cars because it was just him sitting and driving and not doing anything physical and he was forced to quit his recreational job with the parks and recreations department because he did not have enough energy to manage the tasks. At a December 2019 DBQ examination for depressive disorder due to another medical condition, the examiner noted that the Veteran graduated from high school in 1963 and earned several certificates through on-the-job workshops. The Veteran’s longest job was athletic director for Lee County for seven years. However, the Veteran had trouble maintaining and working full time for many years due to his heart condition. The Veteran was last working part-time driving cars for a dealership but had to take frequent breaks and could not work full-time. In correspondence received in December 2019, the Veteran’s tax information submitted to the Social Security Administration between 2011 to 2016 indicate the Veteran’s taxed social security earnings were as follows: 2011 was $8,307.00; 2012 was $0.00; 2013 was $371.00; 2014 was $13,223.00; 2015 was $13,783.00; and 2016 was $9,088.00. VA has a "well-established duty" to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation under 38 U.S.C. § 1114. Entitlement to SMC is treated like a claim for increased compensation; it is part and parcel of an increased rating claim. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As noted in Bradley, VA must consider a TDIU despite the existence of a schedular total rating in order to determine eligibility for an award of SMC under 38 U.S.C. § 1114(s). Initially, the Board notes that the Veteran was in receipt of a 100 percent combined rating as of August 11, 2017. In addition, the Veteran is in receipt of an award of special month compensation under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) at the rate intermediate between subsection(l) and subsection (m) on account of entitlement to a rate equal to subsection (l) with additional disability, namely coronary artery disease that was independently ratable at 50 percent or more since August 11, 2017. This award is the greater benefit than an award of special monthly compensation under the provisions of § 1114(s) (housebound rate). The law does not provide for a veteran to receive both special monthly compensation under § 1114(s) and § 1114(p). Accordingly, any claim of entitlement to compensation at the § 1114(s) level is effectively moot, as the Veteran is receiving a higher amount of special monthly compensation under § 1114(p) for the appeal period beginning on August 11, 2017. For the appeal period prior to August 11, 2017, the Board finds that the Veteran is not entitled to a TDIU. The Board has carefully considered the Veteran’s statements regarding the effects of the Veteran’s service-connected coronary artery disease and hypertension on his employability. Although the Veteran experienced some limitations as a result of his service-connected disabilities, and these have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the scheduler ratings currently assigned. Simply stated, if he did not have impairment with his service-connected coronary artery disease and hypertension, there would be no basis for the awards. The fact that he was having impairments or difficulties does not provide a basis to grant TDIU. Furthermore, although the Veteran asserts that he stopped working full-time in 2011, it was noted in the October 2018 DBQ that he retired in 2011 and started working part-time until his stroke in 2017, notwithstanding his coronary artery disease and/or hypertension. Although the Veteran reported that he became depressed because he had to reduce his workload after his coronary artery bypass surgery, he maintained substantially gainful employment for at least part of the appeal period prior to August 11, 2017. According to the United States Census Bureau Housing and Household Economics Statistics Division, the poverty thresholds for one person was $12,071.00 in 2014 and $12,082.00 in 2015. The Veteran’s reported income according to SSA was $13,223.00 in 2014 and $13,773.00 in 2015. As the Veteran’s reported income exceeded the poverty thresholds in 2014 and 2015, he is considered to have been gainfully employed for these years. The evidence does not establish, and the Veteran has not alleged, that such employment was a family business or sheltered workshop or that such employment was for physically disabled or mentally handicapped adults. Therefore, a TDIU cannot be awarded for the years 2014 and 2015. As noted above, the Veteran was only service connected for coronary artery disease and hypertension for the appeal period prior to August 11, 2017. In this regard, while he does have some limitations associated with his coronary artery disease and hypertension, to include angina or tightness in the chest, such disabilities alone are not of sufficient severity to produce unemployability. The November 2015 VA examiner determined that the Veteran’s metabolic equivalent (METs) were consistent with activities such as light yard work, lawn mowing, and brisk walking and that his ability to work was limited to light duty with frequent breaks. The Veteran’s past work history, to include his work as a car carrier, newspaper route carrier and clerk, allowed for frequent breaks as reported by the Veteran. In reaching such determination, the Board acknowledges the April 2017 opinion from Dr. H.S. that the Veteran was unable to maintain substantially gainful employment as a result of his service connected coronary artery disease. However, this provider also indicated that the Veteran had mobility, severe pain and physical limitations associated with the coronary artery disease but did not explain how the Veteran’s coronary artery disease could cause mobility limitations or severe pain. The Board acknowledges that the Veteran is competent to report the symptoms of his disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board recognizes that the Veteran has stated that he had problems with cognitive difficulties, psychiatric symptoms, and physical limitations. The evidence, however, shows that the Veteran is not unable to obtain and maintain employment due to his service-connected disabilities. Accordingly, the Board finds that entitlement to a TDIU is not warranted for the appeal period prior to August 11, 2017. While the Veteran had some functional impairments related to his service-connected coronary artery disease and hypertension, these problems form the basis of the evaluations assigned. Moreover, the Board notes that prior to August 11, 2017, the Veteran was employed; and thus, capable of substantially gainful employment; and as such, entitlement to a TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.