Citation Nr: 21025370 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-55 139 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied the Veteran’s claim for a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the August 2019 Board decision and remanded it to the Board. Consistent with the findings in the JMPR, the Board remanded the issue for additional development in December 2020, and it now returns for further appellate review. Entitlement to a TDIU. The Veteran was service-connected for coronary artery disease (CAD) rated at 30 percent, effective June 29, 2015, and 60 percent as of June 2, 2020; muscle injury of the right wrist rated at 30 percent, effective October 26, 2016; arrhythmia rated at 30 percent, effective December 7, 2017, and 10 percent from September 15, 2020; and scars of the right hand and wrist, as well as surgical scars associated with CAD, rated as noncompensable, effective October 26, 2016. His combined ratings were 30 percent from June 29, 2015 to October 25, 2016, 50 percent from October 26, 2016 to December 6, 2017, and 70 percent from December 7, 2017, and 80 percent from June 2, 2020. 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 (Director) for extra-schedular 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). 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.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Thus, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). 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. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The Court also defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In the instant case, the Board found in the December 2020 remand that a TDIU was warranted. However, as the Veteran did not qualify for such on a schedular basis for the entire period on appeal, the Board remanded the claim. As noted, supra, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Accordingly, the claim was referred to the Director of the Compensation Service for extraschedular consideration, per 38 C.F.R. § 4.16 (a). While the Director found that a TDIU on an extra-schedular basis was not warranted in a March 2021 opinion, the Board nevertheless resolves all doubt in favor of the Veteran and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, in his October 2016 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he became too disabled to work as of December 7, 2013. The Veteran reported attempting to work in again in 2014, but he has also stated that he could not continue such employment due to his service-connected CAD, as well as his other service-connected disabilities. In regard to his education, he indicated that he had training in heating and air conditioning maintenance, to include specific training for maintenance in federal buildings. As pertinent to his work history, the Veteran reported working only in maintenance, to include as a manager from 2009 until he was unable to work in 2014. The Veteran and his spouse have both reported his inability to work after his heart attack, due to difficulty breathing and chest pain during activity. See February 2016 Statement. The Board notes that the record reflects that the Veteran has attempted to stay active, per his doctor’s orders, by working in the yard, kayaking, and walking. However, the Veteran and his wife state that he cannot complete such activities without difficulty and without stopping for rest. Id. In regard to the functional impairment associated with his service-connected disabilities, a September 2015 VA examiner found that the Veteran’s heart disability prevented him from performing heavy-duty physical work. An August 2016 VA examiner opined that, although the Veteran’s heart disability would likely limit the Veteran’s ability to perform strenuous labor or work that requires any amount of physical stamina, it would not hinder his ability to perform work that does not require any physical stamina. Later, a February 2018 VA examiner opined that the Veteran’s heart condition would not impact his ability to complete sedentary work; however, such also stated that the Veteran’s other comorbidities should be factored in when assessing his functional abilities. In this regard, concerning the Veteran’s right wrist muscle injury, the January 2017 VA examiner opined that the Veterans’ thumb could limit his ability to perform jobs that require high grip strength in repetitive fashion. The May 2017 VA examiner also opined that the Veteran was unable to perform physical labor such as mechanic work or any work requiring him to grip items with his right hand. In this regard, the Board notes that as a majority of sedentary work might require gripping of a computer mouse or other objects, thus further limiting his functional ability. Furthermore, the Veteran has no training or experience with such work. The Board notes that in 2019, the records show that the Veteran reported that he is active and works out at the YMCA three days a week and completes cardio exercise (walking, biking or elliptical) and weights. The Veteran also stated that he is active around the house and also kayaks. See April 2019 CAPRI. In a 2017 correspondence, however, the Veteran’s wife described his struggle to complete every-day activities, stating that to increase his stamina, the Veteran and his wife would walk, take short kayak trips, go bowling, and do yard work, but he would have to sit down or lay down after a short period of time due to mild chest pain or difficulty breathing. See January 2017 Lay Statement. The Board acknowledges the evidence unfavorable to the Veteran’s claim as it was described in the March 2021 advisory opinion, to include the fact that the Veteran has not reported attempts to obtain sedentary employment. However, in light of the Veteran’s training and sole work history involving physical labor, as well as the evidence described herein, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Specifically, the Board finds probative that the Veteran’s education level, training, and experience only prepared him for physically demanding maintenance work, sometimes outside in extreme temperatures on heating and AC units, which was made difficult, if not impossible at times, by his documented fatigue, difficulty breathing, and chest pain due to service-connected disabilities. Therefore, resolving all doubt in the Veteran’s favor, a TDIU on an extra-schedular basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.