Citation Nr: 21022718 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 06-25 487 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from May 21, 2004 is granted. FINDING OF FACT The probative evidence of record indicates that the Veteran’s service-connected disabilities precluded him from obtaining and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to May 1969, including service in the Republic of Vietnam from August 1968 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2004 and February 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2017, when the Board denied the Veteran’s claim. In November 2018, the Court of Appeals for Veterans Claims (Court) granted the parties’ Joint Motion for Remand (JMR) and vacated the Board’s decision. In the October 2017 Board decision, the Board relied on a November 2014 VA examination that found the Veteran’s PTSD symptoms did not make him unemployable. Specifically, the Board concluded that given the Veteran’s extensive work experience and education, he can obtain and retain substantially gainful sedentary employment. In the November 2018 JMR, the Court ordered the Board to further discuss this conclusion under Withers v. Wilkie, 30 Vet. App. 139 (2018)(noting that if the Board bases its denial of a TDIU in part on the conclusion that the veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case). The issue came before the Board again in June 2019 when the Board remanded the issue for further development. At this time, the Board also remanded the issues of entitlement to service connection for hypertension, to include as due to herbicide agent exposure, or as secondary to PTSD and/or coronary artery disease and entitlement to service connection for erectile dysfunction, to include ase due to herbicide agent exposure or as secondary to PTSD and/or coronary artery disease. The Board found that the issue of entitlement to a TDIU was inextricably intertwined with these issues and must be deferred pending the resolution of the preliminary matters. The June 2019 remand directed that if the required disability percentage under 38 C.F.R. § 4.16(a) is not met for any part of the period on appeal, the claim must be referred to the Director of Compensation Service for consideration of an extraschedular TDIU rating. In a November 2020 rating decision, the Veteran was granted service connection for coronary artery disease with a history of myocardial infarction from March 24, 2010. That issue is therefore no longer before the board. In a separate November 2020 rating decision, the Veteran was entitled to a full grant of the benefits sought on appeal for his hypertension and erectile dysfunction disabilities. As a result of these rating decisions, the Veteran was entitled to an earlier effective date for the grant of individual unemployability, with a new effective date of March 24, 2010. Further, an advisory opinion by the Director of Compensation Service was associated with the file in November 2020. Therefore, there has been substantial compliance with the June 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a total disability rating based on individual unemployability beginning May 21, 2004 The Veteran submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) on July 27, 2009, where he stated that due to his service-connected disabilities, he was unable to maintain gainful employment. The Veteran is service connected for the following disabilities: coronary artery disease with a history of myocardial infarction rated at 10 percent from May 21, 2004, 30 percent from March 4, 2010 and 60 percent from March 24, 2010; post-traumatic stress disorder (PTSD) rated at 30 percent from May 21, 2010; bilateral hearing loss rated at 20 percent from December 18, 2012; tinnitus rated at 10 percent from December 18, 2012; hypertension associated with coronary artery disease rated at 0 percent from May 21, 2004; and erectile dysfunction associated with PTSD, rated at 0 percent from May 21, 2004. The Veteran’s combined evaluation was as follows: 40 percent from May 21, 2004; 50 percent from March 4, 2010; 70 percent from March 24, 2010; and 80 percent from December 18, 2012. The Veteran was granted a TDIU from March 24, 2010 and contends that he is entitled to a TDIU on an extraschedular basis prior to that date. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Nevertheless, even when the percentage requirements are not met, entitlement to a TDIU on an extra-schedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In November 2020, the Director of Compensation Service provided an advisory opinion recommending that the Veteran should be granted entitlement to a TDIU on an extra-schedular basis from May 21, 2004. It follows that the Board now has jurisdiction to adjudicate the issue on the merits, as the Director has made its required initial determination. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1997). The advisory opinion is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Accordingly, the Board must determine whether the evidence supports a finding that he is entitled to a TDIU under 38 C.F.R. § 4.16(b). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. The veteran’s service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or had difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 261 (1993). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). After his military service, the Veteran completed his education and became a high school teacher. The Veteran retired from his full-time teaching position in November 2001 after teaching history, government, and special education for 35 years. The Veteran then worked as a substitute teacher until March 2004. In his March 2004 resignation letter, the Veteran stated that he was no longer able to work because of his heart condition and that he was following the advice of his doctor by resigning. During a November 2009 VA examination for his PTSD, the Veteran reported that he was unable to go back to work due to heart problems. The Veteran also stated that due to his PTSD, he had difficulties running a classroom and was becoming increasingly withdrawn from people. In November 2014, the Veteran stated that a bad flare-up of his heart condition terminated his full-time career. Additionally, during a May 2019 VA examination, the Veteran reported that he tried to go back to teaching after his retirement, but he suffered a heart attack and could not return. The Veteran also submitted treatment records from Dr. J.W.D., his private doctor. In February 2004, Dr. J.W.D. submitted a letter which stated that the Veteran has recently suffered from several attacks of angina and was subsequently found to have significant blockage in a blood artery in his heart. Dr. J.W.D. opined that while there are multiple factors contributing to the development of this condition, most notably is the level of emotional stress related to his occupational duties. Dr. J.W.D. subsequently advised the Veteran that, under the circumstances, a stress free environment would be most conducive towards reducing the long term risk of recurrent angina, or worse, a heart attack. Dr. J.W.D. concurred with the Veteran’s decision to retire from the workplace as a broader lifestyle change. In October 2009, Dr. J.W.D. also opined that the Veteran’s PTSD and coronary artery disease each independently, and taken together, serve as a perpetuating cycle of stress and incitement that lead to a diminished quality of life and inability to be gainfully employed. The Veteran also provided a letter from Dr. J.W.D. from September 2010. At this time, Dr. J.W.D. opined that, after treating the Veteran for many years and reviewing the Veteran’s military records, the Veteran cannot work effectively in any capacity. Dr. J.W.D. found that the Veteran cannot handle the stress related to any job as he has experienced an increase in anxiety and depression. Dr. J.W.D. further stated that anxiety and depression cause the body to release stress hormones of adrenaline, norepinephrine, and cortisol. Dr. J.W.D. stated that these hormones increase the heart rate and restrict blood vessels, and that this could aggravate the Veteran’s existing heart disease and puts him at a greater risk for a cardiovascular incident. Dr. J.W.D. stated that if the Veteran was to reenter the workforce in any capacity, this would lead to an increase in anxiety which would cause more damage to the Veteran’s cardiovascular system. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran was previously a high school teacher, and briefly served as a substitute teacher after his retirement. The evidence reflects that the Veteran resigned from his full-time teaching position in November 2001, and that he had to resign from his substitute teaching position in March 2004 due to his service-connected disabilities. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities rendered him unemployable. As reasonable doubt must be resolved in favor of the appellant, entitlement to a TDIU from May 21, 2004 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. May 21, 2004 is the appropriate effective date for the grant of benefits. As noted in the Board’s July 2011 remand, the TDIU claim on appeal was part of an initial increased rating claim for the Veteran’s PTSD. That claim was received on May 21, 2004, more than one year after the Veteran separated from service. Where a claim for TDIU stems from an initial disability rating, the service-connection earlier effective date regulation ought to apply by analogy. See Rice v. Shinseki, 22 Vet. App. 449, 456 (2009) (explaining that Hurd v. West, 13 Vet. App. 449 (2000) does not stand for the proposition that an assertion of entitlement to TDIU is always a claim for increased compensation, and when the initial disability rating is on direct appeal, it is error to apply 38 U.S.C.A. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(1)). Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(o). Otherwise, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Id. In this case, the most probative evidence of record shows that the Veteran became unable to work due to his service connected disabilities prior to May 21, 2004. Therefore, the date of his claim is the correct effective date. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.