Citation Nr: 21042238 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-29 260 DATE: July 12, 2021 ORDER Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) from March 27, 2015, is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's formal claim for a TDIU was filed during the pendency of an open claim seeking an increased evaluation that was filed on March 27, 2015. 2. The most probative evidence reflects that the Veteran's service-connected disabilities have rendered him incapable of securing or following a substantially gainful occupation from March 27, 2015, to the present. CONCLUSION OF LAW The criteria to establish TDIU are met from March 27, 2015, to the present. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1958 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In May 2021, the Veteran presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. At the hearing, the VLJ agreed to hold the record open for 30 days for the submission of additional evidence. The Veteran submitted such evidence within this period, and thus, original consideration of this evidence by the AOJ is waived. 1. Entitlement to a TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose 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, or of 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. Id. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis The Veteran asserts that his service-connected disabilities have rendered him incapable of securing or following a substantially gainful occupation during the pendency of the appeal. For the reasons discussed below, the Board concludes that the most probative evidence bolsters his contention, and thus, a TDIU is warranted throughout the entirety of the appeal period which may be readjudicated at this time. The remaining entitlement of the Veteran's appeal will be addressed in the remand section. As an initial matter, the Board finds it necessary to recount critical procedural aspects of the Veteran's appeal in order to define the appeal period of the Veteran's issue. In a November 1972 rating decision, the AOJ established service connection for duodenal ulcers, effective from July 14, 1972. In a December 1972 rating decision, the AOJ increased the initial evaluation assigned for this disability from 10 percent to 20 percent, effective from the effective date of the original award of service connection. In November 1973, the AOJ granted a temporary total evaluation from January 21, 1974, to February 28, 1974, pursuant to 38 C.F.R. § 4.30 following gastrectomy and bilateral vagotomy surgery requiring convalescence in connection with recurrent peptic ulcers. The previously-assigned 20 percent evaluation for this disability was continued from March 1, 1974. On March 27, 2015, the AOJ received from the Veteran a claim seeking an increased evaluation for his service-connected gastrointestinal disability with accompanying private treatment records showing that this disability had increased in severity in the year prior to his filing. In a July 2015 rating decision, the AOJ increased the evaluation assigned for this disability from 20 percent to 60 percent, effective from March 27, 2015. Before the Veteran was notified of the July 2015 rating decision, he filed a claim seeking separate evaluations for surgical scars incurred during the January 1974 surgery. In an October 2015 rating decision, the AOJ assigned a separate 10 percent initial evaluation for one surgical scar. In April 2017, the Veteran filed a formal claim seeking a TDIU. In developing this claim, the AOJ provided the Veteran with gastrointestinal and scar VA examinations to determine the functional and occupational impairment stemming from these service-connected disabilities. In the August 2017 rating decision, the AOJ, among other actions, denied the Veteran's TDIU claim, proposed to reduce the 60 percent evaluation assigned for the Veteran's service-connected gastrointestinal disability to 40 percent, and established service connection for another post-surgical scar, finding that the October 2015 rating decision contained clear and unmistakable error (CUE) in not undertaking this action. The proposed reduction was implemented by the AOJ in a February 2018 rating decision, and the Veteran expressed timely disagreement with the reduction and TDIU denial in April 2018. As an aside, the Board notes that the AOJ found in an August 2019 DRO decision that the rating reduction implemented in the February 2018 rating decision was the result of CUE, and thus, the 60 percent evaluation for this disability was restored, effective from the date of the reduction. With the above facts in mind, the Board concludes that the Veteran's March 2015 claim for an increased evaluation for his service-connected gastrointestinal disability remained open, pending, and pursued, until the Veteran filed his April 2017 claim seeking a TDIU. To the extent that this claim was adjudicated and readjudicated several times during this period, it is clear from the AOJ's findings and actions, to specifically include the assignment of a separate initial evaluation for post-surgical scars, that the finding of CUE for the purpose of revising the prior decisions overcame the finality of the same. 38 C.F.R. § 3.105. Armed with the above conclusion, the Board notes the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), that a TDIU claim filed during the pendency of an appeal seeking an increased evaluation is considered to be part and parcel of such. In sum, the appeal period for consideration by the Board regarding the Veteran's TDIU is from March 27, 2015, to the present. The Veteran's service-connected post-operative gastrectomy and vagotomy, duodenal ulcer, and gastroesophageal reflux disease (GERD) is evaluated 60 percent disabling meeting the criteria for a schedular TDIU, from March 27, 2015, to the present. 38 C.F.R. § 4.16(a). As such, the Veteran's appeal turns on whether his service-connected disabilities, at any point in time, rendered him unable to secure or follow substantially gainful employment. The Veteran's April 2017 formal TDIU claim reflects that he graduated from high school and also completed one year of college; however, he did not possess additional education or training. He claims that he last worked as a construction foreman on May 1, 2012, leaving this occupation because the symptoms associated with his service-connected gastrointestinal disability made further participation in this occupational untenable. More specifically, the Veteran testified at the May 2021 Board hearing that his service-connected disability is manifested by periods of severe gastrointestinal symptoms, to include urgent episodes "of vomiting and diarrhea, especially after eating," and the unpredictable nature of these symptoms resulted in an inability to traverse job sites to coordinate work groups. Moreover, the Veteran's reports of the frequency, severity, and duration, of his gastrointestinal symptoms is consistent with the evidence reflected in his VA and private treatment records and the reports of July 2015 and June 2017 VA examinations. While the Board observes that the July 2015 and June 2017 VA examiner stated that the Veteran's service-connected gastrointestinal disability did not result in occupational impairment, no rationale for either statement was offered. Further, contrary to these unsubstantiated findings, is a May 2021 statement from the Veteran's private physician, who opined that the symptoms associated with the Veteran's service-connected disability "would make it very unlikely that [the Veteran] is able to keep any kind of gainful employment." While the Board acknowledges the above opinions, it is noted that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but is a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In the present case, the Board, as the finder of fact, concludes that the most probative evidence reflects that the functional impairment stemming from the Veteran's service-connected gastrointestinal disability has precluded his precipitation in a substantially gainful occupation since March 27, 2015. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, the Veteran is entitled to a TDIU from March 27, 2015, to the present. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.