Citation Nr: 21026250 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-30 819 DATE: April 30, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) for periods prior to September 15, 2017, and from December 1, 2019, is denied. FINDING OF FACT For periods prior to September 15, 2017, and from December 1, 2019, the Veteran's service-connected disabilities have not precluded substantially gainful employment for which his education and occupational experience would otherwise have qualified him. CONCLUSION OF LAW The criteria for a TDIU for periods prior to September 15, 2017, and from December 1, 2019, have not been met on a schedular basis and referral for extraschedular consideration is not warranted. 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 December 1969 to July 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in October 2018 at which time the case was remanded for additional development. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 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). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having 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 following: 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. As a starting point, the Board notes that in November 2017 the RO granted service connection for lung cancer and assigned the Veteran a 100 percent rating effective September 15, 2017. Regarding this disability, the evidence shows that the Veteran underwent a left upper lobectomy with node dissection in June 2017 with negative margins and no chemotherapy or radiation. This rating was reduced to 0 percent effective December 1, 2019. Thus, as the Veteran was in receipt of a total schedular rating for the period from September 15, 2017 to December 1, 2019, consideration of a TDIU is moot since a total schedular rating is considered the greater benefit. While a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC), such circumstances do not apply here. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). That is, the Veteran does not satisfy the criteria for SMC benefits for the period that he was in receipt of a 100 percent schedular rating and therefore the issue of entitlement to a TDIU for this period is moot. See 38 U.S.C. § 1114(s). Prior to September 15, 2017 For the period prior to September 15, 2017, the Veteran was service connected for ischemic heart disease (IHD) rated 30 percent disabling. Thus, he does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a) for this period. The above notwithstanding, as noted, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude substantially gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, remand the claim for referral to the Director of Compensation Service for consideration of the Veteran's entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). The initial extraschedular 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." Ray, 31 Vet. App. at 66. For the following reasons, that standard has not been met here. On the Veteran’s formal application for TDIU (VA Form 21-8940) in March 2015, he reported that he lasted worked in May 2013 in housecleaning/maintenance for a nursing home and that prior to this position he worked for a paper company. He further reported that he was unable to walk for any length of time because of leg cramps, fatigue, shortness of breath and lack of stamina. He added that at times he was dizzy and had chest pain. VA treatment records show that he stopped working in May 2013 and that his last job was working as a janitor for a nursing home. He also reported having worked as a roofer and in construction for many years. He reported that he attended one year of high school. In terms of his service connected IHD, VA treatment records show that the Veteran first sought treatment in February 2012 due to complaints of dizziness and a syncope episode, as well as chest pain and shortness of breath on exertion. His history at that time included coronary artery disease (CAD), hypertension and smoking. After undergoing a full cardiology work up with positive stress test and cardiac catherization that revealed severe, multivessel CAD, the Veteran underwent quadruple cardiac bypass surgery in March 2012. Treatment progress notes in April 2012 show that he was encouraged to perform 30-60 minutes of swimming, walking, or biking a day, four to five days a week, and that his anticipated return to work would be approximately three months postsurgery, in June 2012. VA treatment records indicate that the Veteran returned to work in May 2012 and was having difficulty performing his job, but that it was due to his nonservice-connected orthopedic disabilities, namely his right hip and back disabilities, as well as nonservice-connected peripheral vascular disease (PVD). In this regard, an October 2012 record indicates that the Veteran had had back problems for 20 years and he reinjured it several months earlier at which time he was told that he had a herniated disc. Another October 2012 record shows that the Veteran was having difficulty getting through the workday and he sometimes had to leave work early. He was noted to do a lot of walking at work and was having problems with PVD. He said that he developed aching and had to stop and rest. He also said that he had osteoarthritis and a lot of aches and pains. He reported that he occasionally had difficulty getting out of a chair after sitting down and he had been told a number of years earlier that he would need a hip replacement. He additionally complained of anterior chest soreness. A VA record in May 2013 reflects the Veteran’s report of experiencing pain throughout the day and that he wanted to see an orthopedist about his hip. He was diagnosed in June 2013 as having advanced osteoarthritis in his right hip and complete occlusion right carotid artery. An August 2013 VA treatment record notes that the Veteran retired in May 2013 because he was physically unable to perform his job. While the evidence outlined above shows that the Veteran had difficulty performing his job following his return in work in approximately May 2012 following cardiac surgery, and that he stopped work altogether in May 2013 because he was physically unable to perform his job, it is not shown to be related to his service-connected IHD. Rather, the evidence shows that he returned to work in approximately May 2012 despite his May 2012 complaint of left-sided chest soreness, and that his primary complaints at the time he stopped working in May 2013 were related to nonservice-connected orthopedic conditions, PVD and a blocked carotid artery. Pertinent medical opinions include the opinion of an April 2014 VA examiner who reviewed the Veteran’s claims file. This examiner opined that the Veteran’s IHD did not affect his ability to work. She noted that June 2013 test findings revealed left ventricular ejection fraction (LVEF) of 53%, and she reported that the Veteran denied experiencing symptoms with any level of physical activity. She stated that the limiting factor for the Veteran’s activity was degenerative joint disease of his hip and back and she explained that “METS” is based on heart activity. A subsequent VA examiner in March 2016, who physically examined the Veteran and reviewed his claims file, similarly opined that the Veteran’s heart condition did not impact his ability to work. Notably, the Veteran reported at this examination that he had been “fine” since the March 2012 heart surgery and that he had been told that a stress test performed in September 2015 was “looking good”. Also, a disability determination for the Social Security Administration in May 2015 shows that the Veteran was awarded disability benefits effective in May 2013 due to a primary diagnosis of osteoarthrosis and allied disorders and a secondary diagnosis of disorders of the back (discogenic and degenerative). In view of the foregoing, the Board finds that the preponderance of the evidence reflects that the functional impairment from the Veteran’s service connected IHD prior to September 15, 2017, has not been shown to be so severe as to preclude substantially gainful employment. Therefore, the record does not contain sufficient evidence to substantiate a reasonable possibility that he was unemployable by reason of his service-connected disability. Consequently, the criteria for remanding this matter for referral for extraschedular consideration for the period prior to September 15, 2017, are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. From December 1, 2019 For the period from December 1, 2019, the Veteran’s service-connected disabilities include IHD rated 30 percent disabling, chest scar rated 0 percent disabling, and lung cancer rated 0 percent disabling. Based on these ratings, the Veteran does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). Regarding consideration of an extraschedular TDIU rating under 38 C.F.R. § 4.16(b), the evidence does not meet the criteria for referral to the Director of Compensation and Pension. In this regard, the Veteran’s service-connected lung cancer is shown to have been in remission since at least December 2019. The Veteran reported as much at a VA respiratory examination in September 2018 when he stated that he was told at his last appointment, in August 2018, that his cancer was “gone”. (Continued on the next page)   Consideration has been given to VA treatment and examination records showing the Veteran’s complaints of residual chest soreness on the left side, the majority of which are notably dated prior to December 1, 2019. In this regard, the Veteran explained at a February 2018 VA respiratory examination that the pain is not associated with his scar, but rather is located below the scar, and occurs when he lays on his left side and with prolonged walking and physical activity like lifting 50 pounds or so. He said that he treated the pain in the past with Gabapentin which took some of the pain away. He also said that he gets relief by stopping whatever activity is causing the pain. The examiner reported that the Veteran retired in 2014 after working as a janitor for three years, on a pre worked assembly line for 10 years, and in construction for 15 years. She noted that the Veteran had increased shortness of breath and chest wall pain status post lobectomy for lung cancer. She opined that the Veteran’s “LConditions” regarding lung cancer prevented physically active work activities but did not prevent sedentary work activities. She later clarified in an August 2018 addendum that the Veteran had nonservice connected COPD and “lung cancer (in remission)”, and that the Veteran’s COPD was predominantly responsible for the limitations in pulmonary function. Subsequent VA treatment records include an October 2018 VA outpatient record which shows that the Veteran denied chest pain. He also reported at this time that he was able to walk up a flight of stairs. A December 2018 VA outpatient record shows that the Veteran denied increasing chest wall pain. Also, a January 2020 VA outpatient record shows that the Veteran’s main complaints were back and hip pain and that he was “set” for a right total hip arthroplasty. In short, the Board finds that for the period from December 1, 2019, the preponderance of the evidence reflects that the functional impairment from the Veteran's service-connected IHD, chest scar and lung cancer (in remission) have not been shown to be so severe as to preclude substantially gainful employment. Therefore, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the criteria for remanding this matter for referral for extraschedular consideration for the period from December 1, 2019, are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.