Citation Nr: 21028095 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-64 555 DATE: May 10, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. The Veteran seeks entitlement to TDIU and contends that he can no longer work due to his service-connected post-traumatic stress disease (PTSD), coronary artery disease (CAD), and thoracolumbar spine disabilities. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (a). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a)(2) (2019). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2019). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question 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 (1993). The Veteran is currently service-connected for ischemic heart disease (CAD status post myocardial infarction) at 60 percent disabling from March 19, 2020; PTSD with unspecified depressive disorder at 50 percent disabling from August 13, 2012; chronic thoracolumbar spine strain with degenerative changes at 20 percent disabling from April 20, 2012; tinnitus at 10 percent disabling from April 20, 2012; and bilateral hearing loss at 0 percent disabling from April 20, 2012. Accordingly, the Veteran meets the schedular criteria for TDIU during the entire period on appeal, as he has one disability rated at 40 percent, i.e., CAD and PTSD, and his combined disability rating is at least 70 percent. The evidence of record shows that the Veteran worked as a bowling center manager for 20 years prior to stopping in 2012. See May 2017 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The Veteran testified his heart disability prevents him from being able to perform a job that requires a lot of physical work, and he would not be able to do a job sitting at a desk because his back disability would require him to get up and move around. See September 2020 Hearing Transcript, at 3. Further, the Veteran explained that working in an environment with fellow employees or with management looking over his shoulder would be problematic because of his PTSD. Id. Regarding the Veteran's employability, the Veteran underwent a review VA exam for his PTSD in June 2020 by video telehealth. The examiner reviewed the Veteran's claims file and medical records and found that PTSD continued to be at the moderate level of severity, causing impaired sleep, avoidant behavior, and hypervigilance in public. Additional symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood were also noted. The Veteran was observed to have restricted affect and was tearful at times. The examiner found the Veteran's occupational and social impairment level due to his psychiatric disability was with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. However, in an October 2020 rating decision, the Veteran's psychiatric disability was assigned a 50 percent disability rating for occupational and social impairment with reduced reliability and productivity due to his overall symptom presentation in the evidentiary record. Also in June 2020, a VA examination was conducted for the Veteran's heart disability. The examiner reviewed the Veteran's claims file and medical records to perform the examination telephonically. Myocardial infarction and cardiac hypertrophy were noted. A May 2020 interview-based METs test indicated a level of 1-3, which would be consistent with activities such as eating, dressing, taking a shower, and walking slowly for 1-2 blocks. See June 2020 heart VA Examination. However, the examiner explained that the METs level of 1-3 was based on a lung and heart disability. The examiner determined that the Veteran's METs level, due solely to his service-connected heart disability, which shows a normal ejection fraction, is estimated at 3-5, which would be consistent with activities such as light yard work, mowing the lawn with a power mower, or brisk walking. The examiner further determined that the Veteran's light activity limitation was 50 percent due to his heart disability, and 50 percent due to age and a lung disability. Id. In July 2019, private treatment records show the Veteran attended an appointment three weeks following his discharge for myocardial infarction. He was encouraged to resume activities, like gardening and golf, albeit riding in the cart instead of walking. See Providence Health Services Heart and Vascular Institute treatment record dated July 2, 2019, received January 2020. The Board notes that a July 2013 back VA examiner determined the back disability should not prevent the Veteran's return to work, if he sought employment, but would prevent him from performing manual labor. Upon examination, his forward flexion was limited to 65 degrees with evidence of painful motion observed at 45 degrees. The Veteran reported pain up to 6 out of 10, noting it was worse in the mornings, making his back stiff; it was hard to put on shoes and socks. He could only walk about 3 blocks due to hip and back pain. The examiner found that pain due to the Veteran's flare-ups would likely decrease his ability to function and limit forward flexion to 45 degrees. Based on above and resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected PTSD with unspecified depressive disorder, ischemic heart disease (CAD status post myocardial infarction), and chronic thoracolumbar spine strain with degenerative changes render him unable to secure and follow a substantially gainful occupation. Accordingly, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.