Citation Nr: 21024684 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-16 267 DATE: April 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 24, 2017, is denied. FINDING OF FACT Prior to February 24, 2017, the Veteran’s service-connected disabilities do not meet the requisite schedular percentages for entitlement to a TDIU; the evidence of record does not demonstrate the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for this time period. CONCLUSION OF LAW Prior to February 24, 2017, the criteria for entitlement to a TDIU have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from October 1961 to June 1970. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. In a February 2021 rating decision, entitlement to a TDIU was granted, effective February 24, 2017. Because the RO did not grant entitlement to a TDIU for the entire period on appeal, the issue of entitlement to TDIU, prior to February 24, 2017, is properly before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to a TDIU, prior to February 24, 2017 As noted, the RO granted entitlement to a TDIU, effective February 24, 2017. The Veteran seeks entitlement to a TDIU, prior to February 24, 2017. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). Prior to February 24, 2017, the Veteran is service connected for coronary artery disease, rated as 10 percent disabling, tinnitus, rated 10 percent disabling, bilateral hearing loss, rated noncompensable, and surgical scar associated with coronary artery bypass surgery, rated noncompensable. Prior to February 24, 2017, the Veteran had a combined rating of 10 percent, prior to May 8, 2013, and a 20 percent combined rating, thereafter. Because the Veteran did not have a single service-connected disability rated at 60 percent or higher, or a service-connected disability rated at 40 percent or higher, with a combined rating of 70 percent or higher, the percentage requirements for schedular entitlement to TDIU were not satisfied, prior to February 24, 2017. See 38 C.F.R. § 4.16 (a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. In Ray v. Wilkie, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply 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.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant’s “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the Veteran’s limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the Veteran’s limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. For the following reasons, the Board finds the Veteran was not unemployable for TDIU purposes, prior to February 24, 2017, and therefore referral for extraschedular consideration of entitlement to TDIU is not warranted. See 38 C.F.R. § 4.16 (b). The Board first considers the economic component. As indicated in the Veteran’s VA Form 21-8940, he worked from October 2016 to August 2019 as a driver, earning approximately $800 a month. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Here, the Veteran indicates that he earned approximately $9,600 in 2016 and 2017. According to the United States Census Bureau, the single person income level for poverty in 2016 was $12,228, and in 2017 was $12,784. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Board notes the Veteran has also previously reported a work history as a carpenter, advertiser, automotive painting, diver, pilot, and truck driving. See November 2012 VA Treatment Note. Importantly, specific income information pertaining to years prior to 2016 were not provided; however, the Board will resolve doubt and find that the Veteran was marginally employed for the period on appeal prior to February 24, 2017. However, it must still be determined whether his service-connected disabilities caused unemployability. That determination requires consideration of the noneconomic component of TDIU. In this regard, the Board finds that in light of the Veteran’s occupational history, education, skill, and training, his service-connected disabilities did not sufficiently impair his physical or mental ability to perform employment such that he was unable to secure or follow a substantially gainful occupation, prior to February 24, 2017. Turning to the evidence, the Veteran’s VA Form 21-8940, received in January 2021, indicated he last worked as a driver for approximately four years. He indicated he completed two years of college education, with training in architecture. On the application, the Veteran reported that his “vision and heart” affected his employment. Importantly, as discussed previously, prior to February 24, 2017, the Veteran was not yet service connected for his vision disability and was rated as 10 percent disabled due to his heart disability. In addition to his heart disability, prior to February 24, 2017, the Veteran was also rated as 10 percent disabled for tinnitus, and his hearing loss and a scar were rated as noncompensable. The Veteran was afforded a VA examination for hearing loss and tinnitus in October 2013. The Veteran reported inability to hear in a group conversation and difficulty hearing on phones. He indicated that being around loud sounds makes his tinnitus worse and made it difficult to fall asleep at night. A November 2013 VA heart examination indicated the Veteran denied experiencing symptoms with any level of physical activity. The examiner noted the Veteran had normal EKG, chest x-ray, and echocardiogram. See November 2013 VA Examination. The examiner noted the Veteran had no functional impact from his heart condition that would affect his ability to work. See November 2013 VA Examination. In an addendum opinion on the cause of palpitations, the examiner opined that without a Holter or cardiac event monitor, it is difficult to associate the Veteran’s symptoms with his cardiac rhythm. See April 2015 Addendum Opinion. The examiner noted that the medical evidence attributed more to a non-cardiac source of the palpitations as when the Veteran reported palpitations when seeing a physician, the Veteran’s cardiac rhythm was normal, but again noted that it could not be confirmed without a study, such as a Holter or cardiac event monitor, which the Veteran did not submit to, citing the distance necessary to travel to have one done. See April 2015 VA Addendum Opinion. Treatment records are not in significant conflict with findings during VA examination. For example, on numerous occasions the Veteran admitted to physical activity multiple times a week. The Veteran reported walking 1-2 miles a day, several times a week. See July 2013 VA Treatment Note; see also March 2012 Private Treatment EMS Note (Veteran normally walks 1 mile a day), July 2014 VA Treatment note (Veteran walks 2 miles a day). Report of the Veteran’s heart palpitations started in March 2012, but evidence indicates they were likely related to anxiety. See March 2012 Private Treatment Note (noting history of anxiety problems); see also March 2012 Private Treatment EMS Note (noting Veteran’s heart rate was normal and assessed Veteran with having irregular heartbeats due to anxiety attack and mild dysrhythmia), August 2012 Private Treatment Note (noting etiology of palpitations is stress). When treating the Veteran’s palpitations in March 2012, the examiner noted the Veteran reported chest discomfort, but no chest pain, no difficulty breathing, sweating episodes, or fainting. The examiner noted the Veteran’s heart rate and rhythm were normal and the Veteran’s respiratory system was not in distress. An October 2012 VA treatment note indicates the Veteran’s palpitations are caused by the Veteran’s anxiety and his allergy to hypertension medications. In several treatment notes, the Veteran denied chest pain, to include angina and congestive heart failure at a VA treatment facility. See July 2013 VA Treatment Note, October 2013 Treatment Note (noting the Veteran was feeling very well and staying active, walking 1 to 2 miles a day). Taken as a whole, while the Veteran has reported difficulty in obtaining employment, the Veteran’s service-connected disabilities and symptoms do not indicate he was unable to obtain and maintain employment due to his service-connected disabilities, prior to February 24, 2017. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment during this period of time. The Board considered the Veteran’s lay statements that he has had symptoms of CAD that made it difficult to work. The Veteran submitted in his NOD of the original decision for CAD, private medical records that show the Veteran has complained of symptoms of lightheadedness, shortness of breath, diaphoresis, palpitations, nausea and rare chest pain which cause him to rest in the morning and afternoon. See June 2015 Private Treatment Note, undated Private Treatment Note. The Veteran informed the examiner that he has had these symptoms since before his coronary surgery and for several years since. The Board notes that this report is in direct conflict with his medical treatment record prior to June 2015 where the Veteran had consistently denied these symptoms. The first report of being bedridden daily was in correspondence by the Veteran in conjunction with his NOD to the February 2014 Rating Decision where he describes having to rest due to fatigue from palpitations and lack of energy. See April 2014 Veteran Correspondence. The Veteran notes he reported this at the November 2013 QTC (VA examination), however no evidence of these symptoms is mentioned in the examination. The Veteran also has an inconsistent history of reporting symptoms. For example, in the medical record submitted by the Veteran on December 2016, he reports a treatment note incorrectly noted he walks 2 miles a day, citing he has had a foot disability since 2005 that has prevented him from walking even one mile. As noted above, the Veteran has a history of reporting regularly the physical activity of walking, to include reporting walking at least one mile in an October 2019 VA Examination. Medical records indicate the Veteran was actively looking for employment, noting that he was frustrated with his inability to find work. See April 2012 VA Treatment Note. Importantly, the ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. The Veteran’s treatment records also indicate treatment for a variety of non-service-connected disabilities, to include gastroesophageal reflux disorder, lymphoma, hypertension, posttraumatic stress disorder (PTSD), nasal vestibulitis, malignant tumor in the mouth, and general anxiety disorder. See December 2020 VA Treatment Note. While consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, the Board cannot consider a claimant’s impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. In any instance, the Board acknowledges his physical limitations would make it difficult to work. However, after review of the evidence of record the Board finds that the Veteran’s functional limitations caused by his service-connected disabilities during the appeal period would not have precluded all types of employment. Overall, during the appeal period, the Veteran was qualified through education and experience for a wide variety of positions, many of which would not require strenuous physical activity. He is qualified for such positions given that he has held a wide variety of jobs and careers, such as advertising. The Veteran could also have worked as a host in the visitor center of a state or national park, as he has applied to as recently as November 2020. This type of work would also produce income above the poverty threshold. The evidence does not support the contention that the Veteran’s service-connected disabilities prevented him from obtaining work. Further, as noted above, the record shows that many of the Veteran’s lay reports of symptoms are unrelated to service-connected conditions, but rather attributable to other numerous serious medical problems that are not service-connected. The preponderance of the evidence weighs against a finding that the Veteran did not have the physical or mental ability to secure or follow a substantially gainful occupation due to service-connected disabilities, prior to February 24, 2017. The Veteran himself cited his vision disability and heart disability as the reasons why he could no longer work. Prior to February 24, 2017, the Veteran was not service connected for his vision disability. He did not state, and the evidence does not otherwise show, that the service-connected disabilities of bilateral hearing loss, tinnitus, or a scar, caused functional impairment, prior to February 24, 2017, to a degree that caused him to be unable to secure or follow a substantially gainful occupation. Furthermore, the probative, persuasive evidence of record does not indicate that his heart disability was of such severity to prevent him from obtaining or maintaining substantially gainful employment, for this period on appeal. In sum, the Board finds that the evidence does not establish that the Veteran was unemployable due to service-connected disabilities, prior to February 24, 2017. Thus, referral of the case to the Director of Compensation Service for extraschedular consideration is not warranted. The preponderance of the evidence is against a finding of unemployability, prior to February 24, 2017; the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.