Citation Nr: 21042233 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-55 474 DATE: July 12, 2021 ORDER Prior to July 5, 2018, a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to July 5, 2018, the Veteran remained capable of performing the physical and mental acts required for substantially gainful employment. CONCLUSION OF LAW Prior to July 5, 2018, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1973. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2016 rating decision. In an April 2019 Board decision, the Board found the issue of TDIU from July 5, 2018 moot and denied TDIU prior to July 5, 2018. In a November 2020 Memorandum Decision, the Court set aside the April 2019 decision that denied TDIU prior to July 5, 2018, and remanded the claim to the Board for further proceedings consistent with the Memorandum Decision. TDIU prior to July 5, 2018 TDIU may be assigned when the schedular disability rating is less than total, provided the veteran meets the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16(a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. As a disability rating in it of itself recognizes the impairment makes it difficult to obtain and keep employment, in order for a veteran to prevail on a claim of TDIU the record must reflect some factor that takes his case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. The evidence must show the veteran is incapable of performing the physical and/or mental acts required by a substantially gainful employment by reason of his service-connected disabilities. In the context of TDIU, aside from the functional impairment resulting from the veteran's service-connected disabilities, appropriate factors for consideration are the veteran's employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. § 4.16(a); see also Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). However, a veteran's age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. As an initial matter, the Board has reviewed the Veteran's representative's May 2021 informal hearing presentation (IHP), which essentially argues that the prior April 2019 Board decision, which was appealed to CAVC and found to have inadequate reasons and bases and was remanded via Memorandum Decision in November 2020, should have been affirmed. The IHP appears to be a copy of VA's brief originally submitted to CAVC in support of the original Board decision. In any event, as the Memorandum Decision found the April 2019 Board decision's reasons and bases were inadequate, the Board will again address the claim. The Veteran contends that he has been incapable of accomplishing the physical and/or mental acts required for substantially gainful employment due to his service-connected disabilities. In particular, he generally asserts that his service-connected coronary artery disease status post bypass surgery (CAD) and diabetes mellitus, type II (diabetes), prevent him from securing and following substantially gainful occupation. VA received the claim for TDIU in November 2015. The Veteran reported that he last worked in December 2014, when he became too disabled to work. He had a high school degree and had attended electrical school. During the relevant period on appeal and prior to July 5, 2018, the Veteran has been service connected for CAD with a 60 percent disability rating assigned from April 1, 2011 and diabetes with a 20 percent disability rating assigned from April 7, 2011. He was assigned a 10 percent rating for each left and right lower extremity effective November 12, 2015. He has also been in receipt of a non-compensable rating for service-connected anterior chest coronary artery bypass graft surgical scar. Consequently, he met the percentage thresholds for schedular TDIU consideration at all times during the appeal period. The Board notes that the Veteran's remaining service-connected disabilities are in effect on or after July 5, 2018 during which the Veteran is already in receipt of a 100 percent rating. In terms of the occupational impairment due to his service-connected disabilities, the Board notes the Veteran underwent a series of VA examinations in April 2016. Following a heart conditions examination, the VA examiner noted he underwent a graft clearing procedure with stenting between 2014 and 2015, which improved his functional level and his heart condition was stable without angina or exertional dyspnea. An interview based metabolic equivalence of task (METs) test showed he exhibited fatigue with a METs level greater than five to seven METs, which was consistent with activities such as walking up one flight of stairs, golfing without a car, mowing the lawn with a push mower and heavy yard work. In the end, the VA examiner concluded there would be no functional impact on his ability to work due to his CAD. In contrast, following a July 5, 2018 heart conditions VA examination, the VA examiner determined that an interview based METs revealed that he exhibited fatigue with a METs level between one and three, which was consistent with activities such as eating, dressing, taking a shower and slow walking at two miles per hour between one and two blocks. Consequently, the VA examiner found his functional ability to work was impacted by his CAD. He would be unable to perform activities in extreme temperatures or in areas of extreme altitude. He would be unable to carry greater than 25 pounds. He would require rest after work associated activity or following an episode of angina. Further, he would require a work environment with limited stress. In the April 2016 diabetes examination, the VA examiner determined there would be no functional impact on his ability to work due to his diabetes. In doing so, the VA examiner noted that despite the fact that his diabetes was not completely controlled, his treatment plan did not include the regulation of activities, he required less than two visits per month to his diabetic care provider for episodes of hypoglycemia or ketoacidosis, he had no hospitalizations for episodes of hypoglycemia or ketoacidosis in the past 12 months and he had no unintentional weight loss or loss of strength associated with his diabetes. In the April 2016 diabetic sensory-motor peripheral neuropathy examination, the VA examiner also found there would be no functional impact on his ability to work due to either the diabetic peripheral of the right or left lower extremity because the examination revealed only a mild neurological abnormality bilaterally. The only VA examination of record addressing the Veteran's painful scar status post coronary artery bypass surgery and scar status post coronary artery bypass surgery is from July 2018. Upon examination, the VA examiner determined there would be no functional impact on his ability to work due to either scar. Aside from the VA examinations above, the Board notes private treatment records during the pertinent period reveal that Dr. A.H., the Veteran's private treatment provider, consistently recommended increased physical activity. Notably, until February 2016, the treatment records did not document any complaints or findings associated with his CAD, diabetes or diabetic peripheral neuropathy limiting his functional ability. While a February 2016 treatment note recorded his report of increased fatigue, no further information is provided regarding the circumstances resulting in the increased fatigue. Furthermore, despite his report of fatigue, Dr. A.H. continued to recommend increased physical activity. Consequently, there is insufficient information for the Board to determine whether the increased fatigue would preclude him from engaging in physically demanding employment, much less a substantially gainful occupation altogether. As such, the Board is unable to accord the February 2016 record significant probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). After reviewing the evidence of record, the Board concludes that although his service-connected disabilities affected his ability to work as reflected by the assigned ratings, they did not preclude gainful employment prior to July 5, 2018. During the July 2018 heart conditions VA examination, the Veteran explained that he stopped work in 2014 before his three heart surgeries in 2015. He reported that he felt significantly better after having a heart procedure in May 2015, which allowed him to breathe and do things better but that he was unable to do his job like he had before. He worked at a factory performing electrical work with 250 other electricians. The Veteran did not explain how or why he believed that he could not work like he used to before, particularly, in light of him feeling significantly better ("I have never felt better in my life") after the May 2015 heart procedure. Notably, the Veteran did not state that he could not perform the job he did before, just that he could not perform his job the same way. The examiner indicated that the "Veteran reports that eventually his stamina has progressively worsened." This indicates that since the 2015 surgery, this stamina has worsened over time. The Veteran stated that he had used to walk around the neighborhood but that it was too hot now and that he would wear out after a block and it was hard to go up hill. He reported that he just got tired, but not short of breath. The Veteran stated that he no longer used a push mower because his wife bought him a riding lawnmower. The Veteran stated he could not lift 40-pound bags like he used to and instead has to buy 25-pound salt bags. He was able to fix small things and that he recently installed a new water heater, even though he did not lift anything. Further, despite the Veteran's statements that he had deficiencies in working after the 2015 heart procedure, the Board notes that the Veteran was examined in April 2016 and as noted above, the examiner concluded there would be no functional impact on his ability to work due to his CAD. Thus, the Board has considered the Veteran's statements made during the July 2018 heart conditions VA examination and finds that the Veteran's service-connected disabilities did not prevent him from securing or maintaining a gainful employment. The Board notes that even though the Veteran's October 2015 Veteran's Application for Increased Compensation Based on Unemployability disclosed that his employment history consisted of working in a physical demanding position as an electrician and he only has high school level education, during a December 2011 ischemic heart disease VA examination, he admitted that he had been switched to a less physically demanding position within the same electrical company, which suggests that he had acquired job skills applicable to both physically demanding and less physical demanding occupations. (Continued on the next page) As another matter, notwithstanding the Veteran's claim that he has been unemployed since December 2014 due to his service-connected disabilities, a December 2015 response to Request for Employment Information in Connection with Claim for Disability Benefits from his former employer indicates that his employment ended in October 2015 due to a reduction in force. The employer reported that no time during the 12 months preceding his last date of employment was lost due to disability and that no concessions were made to him by reason of age or disability during his tenure. Considering the above, the Board finds the preponderance of the evidence establishes the Veteran was capable of performing the physical and mental acts required by substantially gainful employment prior to July 5, 2018. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.