Citation Nr: 21042070 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-03 109 DATE: July 11, 2021 ORDER New and material evidence having been presented, reopening of the claim for entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. Entitlement to a TDIU is granted. FINDING OF FACT For the entire period on appeal, the Veteran has met the threshold schedular rating requirement and has been unable to secure and follow substantially gainful employment, consistent with his education and occupational background, because of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. Introduction The Veteran served honorably on active duty in the United States Navy during the Vietnam Era, from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a live virtual tele-hearing on July 7, 2021. Finally, please note this appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a TDIU is granted. In a May 2016 Rating Decision, the Veteran's claim for entitlement to a TDIU was denied on the merits. Thereafter, the Veteran submitted a supplemental claim for entitlement to a TDIU in July 2016. Thereafter, the RO issued an October 2016 Rating Decision wherein it reopened the Veteran's claim based upon receipt of new and material evidence; however, the claim was again denied on the merits. Pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds the evidence presented since the prior May 2016 Rating Decision, which includes, inter alia, the Veteran's July 2016 statement, VA Form 21-8940 dated August 2016, VA Form 21-4192 dated September 2016, updated VA treatment records, the Veteran's August 2017 statement, Dr. A.B.U.'s private opinion dated February 2018, the Veteran's July 2018 statement, and the Veteran's July 2021 testimony is new and material as it raises a reasonable possibility of substantiating the claim for entitlement to a TDIU. Turning to the merits of this claim, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled (i.e., a TDIU rating). 38 C.F.R. § 4.16. A TDIU rating is appropriate "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id.; 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." See Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding whether the Veteran has the physical ability, both exertional and non-exertional, to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation(s) at issue. See Ray, 31 Vet. App. at 73. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. 38 C.F.R. § 4.16(a) addresses schedular TDIU, which applies where a Veteran has a single disability rated at 60 percent or more, or two disabilities rated collectively at 70 percent or more where one of them is rated at least 40 percent or more. Id., at 63. In this matter, the Veteran's current combined service-connected disability rating is 80 percent effective November 20, 2015, which includes coronary artery disease (CAD) associated with herbicide exposure rated 60 percent disabling effective November 20, 2015, and post-traumatic stress disorder (PTSD) rated 50 percent disabling effective November 20, 2015. As such, the Veteran satisfies the requisite schedular rating threshold for entitlement to a TDIU and, thus, the issue is whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. For the reasons set forth below, the Board finds they do. A November 2010 statement from Ms. S.D.L., President and Chief Executive Officer of the Veteran's last employer, states the Veteran "suffered a heart attack" while at work as a Vice-President and Chief Financial Officer in February 2006. According to Ms. S.D.L., the Veteran initially returned to work part-time five weeks later "and gradually resumed to full time employment." However, she states after "about five months of working full time, [the Veteran] indicated that he felt he wanted to work part time." According to Ms. S.D.L., "[i]t was evident that [the Veteran] was finding the responsibilities as CFO very difficult," and was "tired and struggled to keep up." Further, she states she "accommodated his request by putting him on a special assignment to assist [her]," which he did part-time "until retiring in December of 2007 in good standing." According to a VA Form 21-4192 completed by the Veteran's last employer in September 2016, the Veteran last worked part-time on November 29, 2007. The employer states the Veteran "indicated he was tired [and] needed to retire." In July 2017, a VA treating provider noted the Veteran "has had severe CAD; had to retire from work due to cardiac issues as he was not able to keep up with workload." A VA psychiatric treatment note dated August 2017 indicates the Veteran continued to have nightmares with decreased hypervigilance and some avoidance behavior. The Veteran submitted an August 2017 statement wherein he describes his efforts to continue working and symptoms associated with his service-connected disabilities. According to the Veteran, "[a]fter about 15 months of 2-3 days per week I was extremely tired, falling asleep at my desk, taking 10 pills a day, I decided to retire." He also states that, with his declining production, he feels he would have been asked to leave and "didn't want to be terminated." The Board finds the former employer's statements, as well as, the Veteran's statements and testimony before the undersigned are entitled to probative weight in this matter. Specifically, the sources are competent in that their statements are based upon personal knowledge and observations of the Veteran's symptomology and functional limitations and, moreover, they appear credible and are not inconsistent with the other substantial evidence of record. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Finally, in February 2018, the Veteran's private treating physician, Dr. A.B.U., authored a medical opinion (submitted March 2018). According to Dr. A.B.U., the Veteran "is unemployable due to the following medical conditions: CAD and PTSD." The Veteran is a high school graduate with a bachelor's degree in accounting. His past work experience includes that as a certified public accountant (CPA) and CFO. The claims file indicates the Veteran has not worked since November 2007 after being accommodated with approximately 15 months of part-time work. Based upon the foregoing, the Board finds the preponderance of the most probative evidence of record establishes the Veteran is precluded from securing and following a substantial gainful occupation due to service-connected disabilities. More specifically, lay and medical evidence of record indicates the Veteran satisfies both the economic and non-economic components for entitlement to a TDIU, as he has been unable to perform the exertional and non-exertional demands of competitive full-time employment consistent with his education and occupational background for the entire period on appeal. See Ray, 31 Vet. App. at 73. Accordingly, entitlement to a TDIU for the entire period on appeal is granted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.