Citation Nr: 21026523 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 20-05 618 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU based solely on the Veteran's service-connected heart disability (coronary artery disease status post history of unstable angina with stents) is remanded. FINDING OF FACT The Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from February 1964 to February 1968 with service in the Republic of Vietnam from March to August of 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s July 2017 rating decision. The Veteran testified at a Board virtual hearing in April 2020. A transcript of that hearing has not yet been added to the file, as this decision is being processed under the Board's "One Touch" hearing program. A copy of this transcript will be added to the Veteran's claims file in the ordinary course of business. Entitlement to a TDIU rating. The Veteran initially claimed that he was entitled to a TDIU rating because of his service-connected PTSD's negative affect on his ability to concentrate, interact with others, and tolerate stress. See February 2018 VA Form 21-8940 and VA Form 21-4138. On this VA Form 21-8940, the Veteran reported that he stopped working as of October 1, 2015 and that he previously worked in service for an automobile dealership from 1998 to 2015. He reported that he left this job because of his disability. He also reported that he was currently working earning $450.00 per month but did not provide any other information about this employment. The Veteran did not report his level of education or whether he has received any additional training (either before or after he became too disabled to work). In other statements, the Veteran also raised the issue of his heart disease impairing his ability to work as well. See February 2020 VA Form 9. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a 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 disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2008). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2008). 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). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2008). The Veteran has the following ratings for his service-connected disabilities: (1) 70 percent for posttraumatic stress disorder (PTSD) as of February 22, 2017; (2) 30 percent for residuals of a gunshot wound to the abdomen, post-operative laparotomy with retained foreign body in the liver as of February 6, 1968; (3) 30 percent for bilateral sensorineural hearing loss as of February 22, 2017; (4) 20 percent for diabetes mellitus, type II, as of February 29, 2008; (5) 10 percent for tinnitus as of February 29, 2008; and (b) 10 percent for coronary artery disease status post history of unstable angina with stents as of February 22, 2016. The Veteran has a combined rating of 90 percent as of February 22, 2017. Prior to February 22, 2017, the minimum schedular requirements for a TDIU were not met as the Veteran's combined disability rating was only 60 percent and he did not have a single disability rating of at least 40 percent. However, as of February 22, 2017, he meets the minimum schedular requirements for a TDIU as he has a single disability rated as 70 percent disabling and his combined rating is 90 percent. Although the Veteran meets the minimum schedular requirements for a TDIU as of February 22, 2017, the evidence must still show that he is unable to pursue a substantially gainful occupation due to service-connected disabilities. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Resolving reasonable doubt in the Veteran's favor, the Board finds that the combination of the Veteran's service-connected disabilities has resulted in his being unable to secure and follow a substantially gainful occupation. Evidence favorable to the Veteran's claim consists of a statement from his supervisor at his previous full-time employment who states that the Veteran had substantial interpersonal difficulties at his job and would get overwhelmed by stress and anxiety. The anxiety and stress would also affect his memory and concentration. He further stated he would accommodate the Veteran's need for breaks and days off because of stress. He also stated that the Veteran has a heart condition and was given time off for procedures and recovery time. He concluded by saying that, as much as he respects the Veteran, he cannot give him a recommendation for employment as he would not rehire him. See January 2020 lay statement. In addition, the Veteran submitted a VA Form 21-8497, Request for Verification of Employment, in October 2017 on which his previous supervisor reported that he worked as a service consultant until the end of April 2015 when he left because he was unable to perform work tasks due to a heart condition. VA treatment records show the Veteran was hospitalized for two days in April 2015 for an exacerbation of his heart condition, which had been occurring for two weeks and limited his functional capacity. He underwent cardiac catheterization during this hospitalization, which found he had a 90 percent occlusion of one artery that was successfully stented. See June 2015 Cardiology note. With regard to his heart condition, the Veteran also submitted a January 2020 statement from his VA cardiologist in which she stated that the Veteran has an extensive cardiac history, with atrial fibrillation and coronary artery disease with six stents placed, causing longstanding chest tightness and dyspnea when walking on level ground despite being on medical therapy. In her opinion, the Veteran is unable to be employed due to these symptoms. The physician's treatment records in January 2020 shows the Veteran complained of shortness of breath and chest tightness with mild exertion. In addition to these disabilities, the Veteran also is service-connected for bilateral hearing loss and tinnitus. VA treatment records show he has asymmetric bilateral sensorineural hearing, left greater than right, that is mild to severe in the right ear and mild to profound in the left ear, which he reports makes it difficult to hear especially in noise. See October 2014 VA Otolaryngology consultation note. In August 2014, the Veteran reported at a mental health consultation that his hearing loss is very stressful to him. A March 2017 VA examination shows he hearing loss had worsened since 2014 including showing that speech recognition scores had decreased to 80 percent in the right ear and 54 percent in the left ear as compared to 88 and 84 percent on audiometric testing in 2014. The examiner stated that the Veteran's hearing loss would impact his daily functioning in that, as the Veteran reported, he has a "hard time distinguishing vocabulary," and he "can't understand what others are saying." Although the examiner stated that the Veteran's tinnitus does not have an impact on his daily functioning, in the remarks section pertaining to hearing loss, he stated that the Veteran has bothersome tinnitus and, therefore, he did not test acoustic reflexes because the sound used could potentially exasperate his tinnitus. Finally, the Veteran is also service-connected for a moderately-severe muscle injury to Muscle Group XIX due to a gunshot wound to the abdomen, post-operative laparotomy. Muscle Group XIX involves the muscles of the abdominal wall and provide support and compression of the abdominal wall and lower thorax; flexion and lateral motions of the spine; and synergists in strong downward movements of the arms. See 38 C.F.R. § 4.73, Diagnostic Code 5319. Evidence includes a VA examination from April 2017 (heart). The April 2017 VA examination notes the Veteran had an echocardiogram and exercise stress test in December 2016 that showed the Veteran's left ventricular ejection fraction (LVEF) was 60 percent and he had an exercise tolerance of 9.7 METS. Although the examiner did an interview-based METS test that placed the Veteran's exercise tolerance in the >3 to 5 range, the examiner opined that the December 2016 exercise stress test more accurately reflected the Veteran's current cardiac functional level. Given these findings, the examiner stated that the Veteran's heart condition would functionally impact his ability to work in that he would have dyspnea on exertion with repetitive lifting, bending, walking or climbing, but that sedentary employment would be feasible. The Board concludes from his statement that he meant a position that did not require activities such as repetitive lifting, bending, walking or climbing or employment in which he would have limited exertion so as to minimize episodes of dyspnea. Furthermore, this VA examination and the VA treatment records show the Veteran reported heart symptoms occurred with moderate activity until January 2020 when he reported to his VA cardiologist that symptoms occurred with mild exertion. Moreover, although his treatment records show he was hospitalized in April 2015 and December 2016 for unstable angina and underwent cardiac catheterization both times, the Cardiology treatment notes in between and after those hospitalizations show that he denied having symptoms at all other times and that he exercised up to five days per week by walking, running and/or lifting weights without difficulty. The Veteran also underwent VA examination for his PTSD initially in March 2017 at which time he denied having ever had any treatment for his PTSD. The VA examiner stated in the Remarks section that the Veteran met the criteria for a DSM-5 diagnosis of PTSD, chronic and severe. He also opined that the Veteran's PTSD caused impairment of occupational and social functioning in most areas including work. However, the examiner did not provide an opinion specifically addressing the impact of the Veteran's symptoms on his ability to work except to state that the Veteran reported the following symptoms having had a detrimental impact upon his ability to function in the workplace: flashbacks, episodes of anxiety and panic, social isolation, chronically disturbed sleep, episodes of uncontrolled anger and rage, difficulty concentrating, obsessive hypervigilance, exaggerated startle response and depressed mood. On reexamination in March 2018, the examiner opined that the Veteran's PTSD symptoms caused impairment of occupational and social functioning with reduced reliability and productivity, which would be an improvement in the Veteran's functioning. The Veteran reported that he spends most of his time doing projects and tasks at home and that he volunteers at a veterans' organization three hours per week. He denied any difficulties in doing the tasks he reported. He further reported his left his last employment (which was a part time job with an auto parts store making deliveries to garages) after nine months primarily due to frustration (with people; traffic and other cars; complaints about his speed). He also reported getting winded and having difficulty with lifting heavy parts due to his heart condition. The examiner opined that the Veteran's PTSD would likely impair his employment in any setting regarding his concentration, likelihood of maintaining satisfactory attendance, interactions with others and stress tolerance. With respect to the Veteran's VA treatment records, in an August 2014 mental health consultation, it was noted that the Veteran's PTSD symptoms were distressing but not disabling despite his report of having high levels of anxiety and frequent panic attacks. At his last VA examination in March 2018, the Veteran was still not in treatment despite having been evaluated in August 2014. However, shortly thereafter, the Veteran established mental health care at VA. He began psychotherapy and medication management for his PTSD in June 2018 and thereafter reported improvement in his symptoms. The Board finds this evidence to be in equipoise as there is evidence both for and against the Veteran's claim and no particular evidence warrants assigning greater probative value over the other evidence. Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure and follow a substantially gainful occupation as the result of all his service-connected disabilities. For that reason, the Veteran's appeal is granted. REASONS FOR REMAND Entitlement to a TDIU as solely due to service-connected coronary artery disease status post history of unstable angina with stents (heart condition) VA has a well-established duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Under this duty to maximize benefits, ancillary benefits are to be considered when a veteran becomes eligible without need for filing a separate claim. 38 C.F.R. § 3.155(d)(2); see also Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In February 2020, the Veteran submitted plausible evidence with respect to whether he is unable to secure or follow a substantially gainful occupation solely due to his service-connected heart condition. The Veteran's service-connected heart condition is currently only evaluated as 10 percent disabling. In order to be considered for a schedular TDIU, the disability (without consideration of any other service-connected disability) must be evaluated as at least 60 percent disabling. However, based on the February 2020 medical opinion, the Board finds that referral for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) is warranted. The Board further notes that, if TDIU is granted solely on the basis of the Veteran's heart disability, the additional question of whether the Veteran is entitled to special monthly compensation based at the housebound rate pursuant to 38 U.S.C. § 1114(s)(1) would also need to be considered. Before referral, however, additional development should be accomplished so that the record fully demonstrates the current severity of the Veteran's heart condition. The Board notes that the January 2020 VA Cardiology note indicates the Veteran's heart condition may have worsened as he reported having chest pain/tightness will mild exertion when prior records available for review show his symptoms were present only on moderate exertion. However, this record shows that he was previously being followed in the private sector for his heart condition by a Dr. Hannan. In addition, it shows the Veteran reported he had undergone another cardiac catheterization in September 2019 at a private hospital. The Veteran has not provided the treatment records from these private providers that may provide relevant evidence as to when, and to what extent, the Veteran's heart condition has worsened. Moreover, as there is an indication of worsening since the last VA examination, a new examination should be obtained. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment, including records from the VA Medical Center in North Hampton, Massachusetts, for the period from March 2020 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private health providers who treated him for his heart condition. Make two requests for the authorized records from the identified private providers, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected heart condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. After all additional development has been accomplished, refer the issue of entitlement to a TDIU as due solely to his service-connected heart condition to VA's Director of Compensation Service for extra-schedular consideration. 5. If an extra-schedular TDIU is granted as solely due to the Veteran's service-connected heart condition, then consider whether the Veteran is entitled to special monthly compensation under 38 U.S.C. § 1114(s) is warranted or any other ancillary benefit raised by the record. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.