Citation Nr: 21040922 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-28 905 DATE: July 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 6, 2017, is granted. FINDING OF FACT The Veteran's service-connected disabilities have precluded him from securing or maintaining substantially gainful employment prior to September 6, 2017. CONCLUSION OF LAW The criteria for a TDIU prior to September 6, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the claim for entitlement to a TDIU prior to September 6, 2017. The Veteran appealed the March 2019 denial to the United States Court of Appeals for Veterans Claim (Court). In January 2020, the Court granted a Joint Motion for Remand (JMR), vacating the March 2019 denial, and remanding the TDIU claim to the Board. Thereafter, the Board remanded the claim in May 2020 for further development in compliance with the January 2020 CAVC order, and again in March 2021 to obtain a VA medical opinion that addresses the combined functional impact of the Veteran's service-connected disabilities prior to September 6, 2017. A separate opinion was obtained for each disability, which may be assessed in the aggregate. See Geib v. Shinseki, 731 F.3d 1350 (Fed. Cir. 2013). As such, the Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran submitted an appeals satisfaction notice pertaining to this claim in February 2021. Because there was subsequent claim development, the Board requested clarification of his intent by correspondence dated May 12, 2021. Having received no response from the Veteran within the allotted time, the Board will proceed with adjudication. 1. Entitlement to a TDIU prior to September 6, 2017 The Veteran contends that he has been incapable of accomplishing the physical and mental acts required by substantially gainful employment consistent with his education and occupational experience due to the collective effect of his service-connected disabilities since January 2014. See January 2014 VA Form 21-8940; August 2015 VA Form 9. For the reasons that follow, the Board finds that a TDIU prior to September 6, 2017 is warranted. A TDIU may be assigned, where the schedular rating is less than total, where a veteran 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 schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. §5107; 38C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In relevant part, prior to September 6, 2017, the Veteran was service-connected for the following disabilities: (1) coronary artery disease (CAD), rated at 10 percent from September 2012 to January 2014, and 60 percent from January 2014 to September 2017; (2) anxiety disorder, rated at 30 percent from December 2010; (3) residuals of a radical prostatectomy, rated at 20 percent from November 2010; (4) tinnitus, rated at 10 percent from December 2010; (5) hypertension, rated at 10 percent from September 2012; and (6) erectile dysfunction rated noncompensable from November 2010. The Veteran was awarded a 100 percent rating for CAD from September 6, 2017 and assigned special monthly compensation under 38 U.S.C. § 1114(s) as of that date. The Veteran's combined evaluation prior to September 6, 2017 was 20 percent from November 2010, 50 percent from December 2010, 60 percent from September 2012, and 80 percent from January 14, 2014. Consequently, the Board may consider the claim for a TDIU on a schedular basis from January 14, 2014. 38 C.F.R. § 4.16(a), which is also the date the Veteran alleged his service-connected unemployability began. See January 2014 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Accordingly, the Board will focus its analysis on whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities from January 14, 2014 to September 6, 2017. Turning to the evidence of record, the Veteran completed high school. He did not have any other education or non-military training. His military occupational specialty (MOS) was an infantryman. Since separation from service and prior to September 2017, he worked at a service station, then as an equipment inspector for 11 years, and then as a local truck driver for 24 years. He retired in 2008 for medical reasons unrelated to his service-connected disabilities. See January 2014 VA Form 21-8940; July 2011 VA Examination. The related civilian occupation for his MOS was listed as a "proof tech helper." See DD Form 214. As a truckdriver, his duties included checking over the truck and trailer, waiting for dispatch instructions, separating damaged freight from serviceable freight, and keeping a log. In the daily execution of his job he reportedly used machine tools, sat for 6 hours, and spent the remainder of the workday walking, standing, climbing, crouching, or stooping. He carried freight weighing at least 50 pounds for 53 feet, 4 to 6 times per day. See SSA records received July 30, 2014. When he retired in 2008, he earned $17.49 per hour. See Third Party Correspondence received June 9, 2014. Based on his education and past work experience, the Board finds that the Veteran has a limited proficiency to work in an office-like setting, performing administrative or clerical work. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected disabilities. VA medical opinions from March and April 2021 found that prior to September 2017, the Veteran's anxiety disorder and tinnitus impaired his sleep, resulting in workday fatigue; his CAD limited him to sedentary employment requiring him to exert less than 10 pounds of force to lift, push, or pull less than 1/3 of the workday; and the residuals of his prostatectomy, including some stress leakage, require him to have access to a bathroom for bathroom breaks as needed. A November 2020 VA examiner also found that his CAD limited him to sedentary types of employment due to shortness of breath, chest pain, and onset of fatigue and dyspnea with any ambulatory activities. These opinions are consistent with a May 2015 private medical opinion identifying which service-connected disabilities impaired the Veteran's employability. See Medical Treatment Record-Non-Government, received May 22, 2015. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected anxiety. The April 2021 VA opinion found that prior to September 2017, the Veteran's anxiety disorder rendered him easily confused and impaired his sleep, making concentration and focus on work assignments difficult. Given the forgoing and resolving any doubt in the Veteran's favor, his service-connected disabilities preclude him from obtaining and maintaining substantially gainful occupation consistent with his education, skills, training, and work history. Although the Veteran's work experience suggests he could work in a delivery or courier job involving light weight items, his stress leakage requires access to a bathroom, which necessitates employment in a fixed location. His daytime fatigue and impaired concentration would preclude safe and effective performance of a motor vehicle. Non-office fixed-location employment settings such was a service station would require him to exert force on items greater than 10 pounds more most of the day. Additionally, his stress leakage precludes him from working alone if doing so limits his bathroom access, and handling money requires mental alertness and concentration. Accordingly, the criteria for a TDIU prior to September 6, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, Catherine J. 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.