Citation Nr: 21023156 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-05 705A DATE: April 20, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-service disability (TDIU), from August 25, 2006 to March 20, 2009, is granted. INTRODCUTION The Veteran served on active duty from January 1965 to January 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Board remanded this claim in January 2018, August 2018, and, most recently, in October 2020, for additional development. After the issuance of a December 2020 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. FINDING OF FACT From August 25, 2006 to March 20, 2009, the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have been met from August 25, 2006 to March 20, 2009. 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 is claiming entitlement to TDIU from August 25, 2006 to March 20, 2009. After March 20, 2009, a 100 percent rating has been assigned for the Veteran’s service-connected ischemic heart disease and, thus, this period is not for consideration. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for eligibility as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). During this period, the Veteran’s service-connected disabilities and ratings were as follows : ischemic heart disease at 60 percent; diabetes mellitus, type II, at 10 percent; a chest scar at zero percent; a graft scar at zero percent; and erectile dysfunction at zero percent (but, assigned special monthly compensation for loss of use of a creative organ). As such, the Veteran’s service-connected disabilities satisfy the schedular criteria. 38 C.F.R. § 4.16(a). The record includes evidence both in support of and against his claim. The Veteran’s occupational history includes retirement in 1992 (offered an early retirement by his employer). Further, as discussed in the October 2020 remand, the Veteran assisted his brother’s tree trimming business a few days per week on, effectively, a volunteer basis. This is corroborated by an August 2004 VA treatment record showing that the Veteran endorsed helping with the business a few times each week. The Veteran’s brother stated that, from 2006 to 2009, the Veteran was very limited in what he was able to do, but enjoyed the time spent with his brother and friends while being useful. Thus, the Veteran did not engage in substantially gainful employment throughout the period in question. The Veteran asserts, and his disability ratings support, that he experiences fatigue, dizziness, and shortness of breath since undergoing four-vessel coronary bypass surgery with repair of a left ventricular aneurism. During this period, evidence shows that the Veteran’s ejection fraction ranged between 30 and 40 percent, but by March 2009, his ejection fraction was 29 percent with severe left ventricular dysfunction. In December 2020, the Veteran underwent a VA examination, to include the effects of his service-connected disability on employability. The examiner observed that the Veteran had worked as an engineer before retirement, which the Veteran previously described as being a “pencil pusher.” Ultimately, the examiner stated that the Veteran’s cardiac condition has not “hindered his employment options and opportunities.” Additionally, the examiner opined that the Veteran’s heart disease would limit “light activities,” but he could still sit at a desk for eight hours with episodic standing, walking, and light physical exertion. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102 ), that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevented him from securing and following substantially gainful employment from August 25, 2006 to March 20, 2009. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib, 733 F.3d 1350. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities was of such nature and severity as to preclude substantially gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Board finds significant that the severity of the Veteran’s ischemic heart disease, specifically as it pertains to his ejection fraction. Thus, given the evidence regarding the severity of the Veteran’s service-connected disabilities, and opinions and evidence indicating the Veteran’s functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU from August 25, 2006 to March 20, 2009. See Geib, 733 F.3d 1350. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.