Citation Nr: 21025005 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-22 183 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 19, 2019, is denied.   FINDING OF FACT The weight of the evidence is against a finding that the Veteran became unable to secure or follow substantially gainful employment due to his service-connected heart disability prior to July 19, 2019. CONCLUSION OF LAW The criteria for a TDIU, prior to July 19, 2019, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from May 1970 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision. In his June 2014 substantive appeal, the Veteran requested a Board hearing, which was subsequently scheduled. However, in June 2020, the Veteran withdrew his hearing request. See 38 C.F.R. § 20.704(e). Entitlement to a TDIU prior to July 19, 2019. The Veteran is in receipt of a disability rating of 100 percent for the service-connected CAD effective July 19, 2019. Prior to this date, the Veteran was in receipt of service connection for (1) CAD rated as 100 percent disabling from May 2010, 60 percent disabling from July 2010, and 10 percent disabling from January 2019; (2) posttraumatic stress disorder (PTSD) rated as 50 percent disabling; (3) right upper extremity rated as 40 percent disabling; (4) diabetes mellitus type II rated as 20 percent disabling; (5) tinnitus rated as 10 percent disabling; (6) peripheral neuropathy of the left lower extremity rated as 10 percent disabling; (7) peripheral neuropathy of the right lower extremity rated as 10 percent disabling; and (8) erectile dysfunction rated as noncompensable. The Veteran has not contended that any other service-connected disabilities alone or in combination, are of such a severity so as to preclude substantially gainful employment. To the contrary, he wrote in his June 2014 substantive appeal that he could not work due to his heart condition. Again in his November 2010 claim form, the Veteran identified the service-connected disability preventing him from a substantially gainful occupation as his heart and artery condition, myocardial infarction. He reported that he became too disabled to work at a factory in March 2010. He reported that his previous employment included work in security, as an electrician helper, and a forklift operator. He reported that he had a general education development (GED) as his highest level of education. Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, 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, 73 (2019) (citing 20 C.F.R. § 404.1567) In this case, the collective evidence does not show that the Veteran’s service-connected heart disability rendered him unable to secure or follow a substantially gainful occupation. A March 2011 VA examination report reflects that the Veteran was unemployed reportedly due to medical reasons. The examiner noted that the effects of his heart disability on usual occupation and resulting work problems as being assigned different duties; increased tardiness; and increased absenteeism. The effects on occupational activities were noted as decreased mobility; problems with lifting and carrying; lack of stamina; and weakness or fatigue. The examiner concluded that his heart disability had a moderate to severe effect on activities of daily living. The examiner opined that the Veteran’s heart disability is at least as likely as not to moderately to severely impair his physical employment and it is at least as likely as not to mildly impair his sedentary employment. However, it was also the examiner’s opinion that the Veteran’s heart disability was less likely as not to preclude him from completely gainful employment because he was at least as likely as not capable of work suitable with his current medical condition. In July 2011 correspondence, the Veteran reported that he is unemployable due to his heart and artery condition. He reported that he has been rejected from employment. He reported that he suffered from gout and had attacks that disabled him completely until it went away. He reported that he was low in energy, could not walk or stand for long periods of time, could not pick up weight continually, was half deaf, and now considered a borderline bleeder. He reported that he would not pass a physical for employment. In July 2011, the Veteran submitted correspondence from results of a job application. The Veteran was disqualified from employment as a Transportation Security Office (TSO) with the Transportation Security Administration (TSA) due to a current long-term use of an anticoagulant he took for his heart disability. He submitted another rejection letter for a job color technician; the reason for the rejection was not specified. A February 2014 VA examination report reflects that the Veteran complained of chest pain, some angina, shortness of breath, and fatigue. The examiner found that the impact of the heart condition on the Veteran’s ability to work was a limited ability to exert himself without dyspnea. In July 2014, the Veteran submitted correspondence that showed that he was eliminated from consideration of a job due to his limitations on physical lifting or climbing stairs. In February 2015 and August 2018 VA examination reports, the clinician found that the Veteran’s heart condition did not impact his ability to work. In July 2019 and August 2019 Disability Benefit Questionnaire (DBQ) reports, the examiners found that the Veteran’s heart condition impacted his ability to work and the Veteran’s dyspnea affected limitations with doing any strenuous activities which could negatively impact occupational and employment activities. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, as a medical examiner is responsible for providing a full description of the functional effects of disability upon a person’s ordinary activity (see 38 C.F.R. § 4.10) and has done so here. The findings, comments, and opinions of the March 2011 and February 2014 VA examiners, as noted above, have appropriately been considered as pertinent evidence, along with the Veteran’s competent assertions in determining whether he is able to perform the acts required for substantially gainful employment. Notably, the Veteran submitted evidence showing that he attempted to obtain gainful employment in different fields. None of them were consistent with work in a sedentary environment. By “sedentary,” this term is used according to its common meaning of a non-physical job, primarily involving sitting, manipulation of objects with the hands and arms, with minimal walking and standing, and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). His disability would not qualify him for a physical job consistent with his past work experience as a factory worker for over 10 years, and his other jobs requiring physical exertion. He does not have the express training or skills for sedentary employment, but this does not preclude unskilled sedentary work. Pederson v. McDonald, 27 Vet. App. 276 (2015). The February 2015 and August 2018 VA examiners found that the Veteran’s heart disability did not impact his ability to work. Their assessments are consistent with the other evidence indicating that he would not be unable to perform the essential job functions of any sedentary job. His heart disability would not prevent him from sitting most of a day with routine use of his hands and arms, concentrating on tasks, organize and processing information, and interacting with others. As such, it cannot be found that he would be excluded from all forms of substantially gainful occupation. Social Security Administration (SSA) records from October 2011 reflect that that the Veteran was determined to be disabled. This award was based on the laws and regulations governing awards of SSA disability benefits, which are different from those that apply in the VA TDIU context. As shown by the SSA records, the award was based on his inability to perform past relevant work. The question for VA TDIU purposes is whether the Veteran was capable of performing the physical and mental acts required by any more-than-marginal employment, not whether he could perform past relevant work. See, e.g., Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). Hence, overall, the evidence prior to July 19, 2019, is against the claim. From July 19, 2019 and thereafter, the question of whether the Veteran is entitled to an award of a TDIU is rendered moot, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. Based on the foregoing, the overall evidence of record indicates that Veteran is not unable to maintain gainful employment due to his service-connected CAD. Accordingly, the probative evidence is against a finding that the Veteran is precluded by his service-connected CAD from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience prior to July 19, 2019. As the weight of the evidence is against the claim, a TDIU is not warranted. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.