Citation Nr: 21029942 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-30 057 DATE: May 17, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from January 8, 2010. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW From January 8, 2010, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show 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. 38 C.F.R. § 4.16. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran, through counsel, asserts that he has met the schedular requirement for a TDIU and he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board agrees. The Veteran is currently service connected for: coronary artery disease (CAD), rated as 60 percent disabling; an acquired psychiatric disorder, to include anxiety (anxiety) associated with peripheral sensory neuropathy, right upper extremity, rated as 30 percent disabling; muscle injury, muscle group II (minor) associated with spontaneous pneumothorax with thoracotomy, left, with wedge resection of left upper lobe, and residuals of post pneumothorax, right, rated as 20 percent; spontaneous pneumothorax with thoracotomy, left, with wedge resection of left upper lobe, and residuals of post pneumothorax, right, rated as 10 percent; scars, residuals of thoracotomy associated with spontaneous pneumothorax with thoracotomy, left, with wedge resection of left upper lobe, and residuals of post pneumothorax, right, rated as 10 percent; sensorineural hearing loss, rated as 10 percent; tinnitus, rated as 10 percent; type II diabetes mellitus (diabetes), rated as 10 percent; peripheral sensory neuropathy, right upper extremity associated with diabetes, rated as 10 percent; peripheral sensory neuropathy, left upper extremity associated with diabetes, rated as 10 percent; peripheral sensory neuropathy, right lower extremity associated with diabetes, rated as noncompensable; peripheral sensory neuropathy, left lower extremity associated with diabetes, rated as noncompensable; hypertension associated with CAD, rated as noncompensable; erectile dysfunction (ED) associated with CAD, rated as noncompensable; and, transient ischemic attacks (TIA) associated with CAD, rated as noncompensable. The Veteran has a combined disability rating of 70 percent, effective January 8, 2010, and 90 percent, effective July 29, 2010. As such, the Board finds that the schedular rating criteria for a TDIU have been met since January 8, 2010. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence shows that the Veteran last worked full-time in October 2009 and that he does not receive income from employment exceeding the federal poverty threshold. See November 2020 VA Form 21-8940; October 2020 Summary of Earnings. This is in accord with the economic component of entitlement to a TDIU. Regarding the noneconomic component, the Veteran reported that he has three years of college, but did not graduate, and a review of the record shows that he worked at the post office for over 30 years and retired in 2009. During his employment there he performed manual labor as a custodian, which included making small repairs on items as such as vending machines, cleaning toilets, painting walls, light carpentry, floor waxing, and other related activities, until he retired as he was physically unable to continue. See November 2020 VA Form 21-8940; March 2021 Employment Assessment. As a part of his TDIU claim, the Veteran submitted a March 2021 private employability evaluation by Mr. J.G.A., a certified vocational evaluator and case manager (amongst other certifications and licenses). The evaluator opined that after having read the medical information from the Veteran's claims file, and conducting an extensive interview with the Veteran, that the Veteran could no longer secure or follow in a substantially gainful occupation in 2010 as a result of his service-connected disabilities. The evaluator specifically cited the Veteran's CAD, peripheral neuropathy, and his anxiety, as reasons for the Veteran's inability to secure substantially gainful employment. For CAD, he noted functional impairment based on exertional limitations and shortness of breath, which would negate employment in a wide class of job functions involving movement; a reduction of energy level and work production; and the Veteran's lessening of functionality in a work setting involving fast-paced activity. For peripheral neuropathy, he noted functional impairment in that it impacts negatively on employment in all occupations calling for manual dexterity, standing, walking, grasping, lifting, typing, and climbing, which includes sedentary occupations, noting that the Veteran's pace of production in a work environment would be reduced. For anxiety, he noted functional impairment in that the Veteran would not be able to properly function around his co-workers, which would limit harmony and a productive work atmosphere. The evaluator emphasized that the Veteran does not have any computer skills and has done manual labor for the majority of his time in the work force post military service and that he did not consider the Veteran's age or his non-service-connected disabilities in arriving at his findings. On the Veteran's November 2020 VA Form 21-8940, in addition to listing CAD and lungs as the service-connected disabilities that prevent him from working, he also lists diabetes. During his January 2011 VA examination he noted that when he works in the hot weather, he gets dizzy sometimes and has to check his glucose levels. In a March 2009 VA examination, the Veteran noted that his hearing loss impacted his work in that sometimes he is unable to hear when he is called at work. The Board acknowledges the various VA examinations noting no functional impact, however, given the totality of the record and the most probative evidence of record, the March 2021 private employability evaluation report, which considers the Veteran's statements and medical record as whole, establishes that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities, and the benefit sought on appeal is granted from January 8, 2010, the date the schedular rating criteria for a TDIU were met. Significantly, the Veteran nor his counsel have made an argument that he should be awarded TDIU on an extra-schedular basis prior to January 8, 2010. To the contrary, the Veteran, through counsel, has specifically requested an effective date in 2010 for the award of a TDIU. See April 2021 communication from Veteran's representative. To the extent that the record indicates that the Veteran was unemployed, those periods of unemployment are either outside of the window of the period on appeal and is not before the Board, or places him above the poverty threshold for that year. Additionally, by the Veteran's own admission he was working full-time from at least 1987 until 2009 and records indicate that he was earning well above the poverty threshold for one person. See Ray, supra; see also November 2020 VA Form 21-8940; October 2020 Summary of Earnings; United States Census Bureau, Poverty Thresholds from 1987 to 2009. Notably, the evaluator opined that the Veteran could no longer secure or follow in a substantially gainful occupation from 2010, and not prior to that year, as a result of his service-connected disabilities. Accordingly, the Veteran is not eligible for a grant of TDIU under 38 C.F.R. § 4.16(b) prior to January 8, 2010. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.