Citation Nr: 22017590 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 11-33 701 DATE: March 25, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his service-connected disabilities renders him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341,4.16. REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served on active duty in the United States Army from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Of note, the Veteran was scheduled for a June 15, 2011 VA RO hearing. In a report of general information dated in May 2011, the Veteran indicated that he wished to withdraw his RO hearing request and his scheduled hearing was canceled. Subsequently, in August 2016, the Veteran testified before the Board at a videoconference hearing. The transcript is associated with the file. In a March 2021 Board decision, the Board denied the Veteran's increased rating and TDIU claims. The Veteran appealed the March 2021 decision to the U.S. Court of Appeals for Veterans Claims (Court). In an Order of the Court granting a January 2022 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the part of the March 2021 Board decision denying TDIU and remand the matter for compliance with the terms of the JMPR. The case has been returned to the Board. Entitlement to a TDIU The Veteran alleges that he cannot obtain or maintain substantially gainful employment due to his service-connected disabilities. In April 2019, the Veteran filed an application for a total disability evaluation based on individual unemployability (TDIU). He alleged that he had been unemployable from April 1, 2004 because of his ischemic heart disease. The Veteran states that he last worked at Virginia Tech College of Engineering. He noted in his TDIU application that he completed two years of college and had to stop working after having a second heart surgery in 2003. The Veteran retired after 30 years of work in 2004. This TDIU claim is part and parcel of the Veteran's request for a higher initial rating for ischemic heart disease. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In the January 2022 JMPR, the parties agreed that the Board erred in its March 2021 decision by failing to provide an adequate statement of reasons or bases addressing why the Veteran was not entitled to a TDIU. In this regard, the Board did not adequately explain if the Veteran was capable of performing the physical and mental acts tasks required of employment or discuss limitations due to service-connected disabilities and explain whether they preclude substantially gainful employment pursuant to Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The parties additionally noted that the Veteran's METs score in his February 2017 and January 2019 VA examinations should have been attributed solely to his service-connected disabilities according to Mittleider v. West, 11 Vet. App. 181, 182 (1998), and they further stated that the Board did not discuss how the functional impact of the Veteran's service-connected right foot, hearing loss, and tinnitus disabilities affects his ability to maintain work. 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. 38 C.F.R. § 4.16. A finding of total disability 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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). The economic component 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. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374. From February 2, 2017 to the present, the Veteran meets the schedular requirements for a TDIU. The Veteran's service-connected disabilities are CAD rated as 60 percent disabling, tinnitus and a right foot condition rated as 10 percent disabling respectively and left ear hearing loss, left ear condition, left leg, chest and bilateral arm scars, and bladder cancer are assigned noncompensable disability ratings. Thus, the Veteran's combined disability rating was 70 percent as of February 2, 2017. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. However, prior to February 2, 2017, the Veteran's service-connected CAD is rated at its highest as 10 percent disabling, and no change in his other service-connected disability ratings discussed above. Thus, his combined disability rating was 30 percent and prior to February 2, 2017, the Veteran did not meet the schedular rating criteria for a TDIU. The Veteran contends that he stopped working in 2004 after his last heart surgery, claiming that he is unable to work due to his service-connected CAD. A June 2010 notation in the claims file reflects that the Veteran cancelled his initial VA heart examination and requested rescheduling because his job was taking him out of state until August 2010. An October 2008 VA foot medical examination indicated that after the military the Veteran worked in manufacturing and then as a lab manager. The October 2008 VA medical examiner indicated that in 1984 the Vet had a tibial sesamoidectomy and osteoectomy of the 5th metatarsal. He indicated that there were painful calluses present on the Veteran's right foot, and he stated that the Veteran retired in 2004 because he was eligible by age or duration of work. A November 2013 VA examination diagnosed the Veteran with bilateral hearing loss. The November 2013 examiner opined that the Veteran's hearing loss impacted his ability to work. The Veteran stated that his hearing loss affected his personality and prevented him from enjoying activities, and he indicated that he had to make others repeat themselves. In a July 2016 brief the Veteran's representative indicated that the Veteran had to stop working after his second coronary artery bypass surgery in 2003, which was due to his service-connected IHD. At an August 2016 Board hearing the Veteran testified that he experienced shortness of breath and does not do any work aside from cutting grass while riding the lawnmower because he does not have the stamina or endurance to do strenuous work. A September 2016 VA examination indicated that the Veteran's hearing loss impacted his ability to work. The Veteran stated that the ringing in his ear causes a nervous condition, his ear gets infected often, and loss of hearing makes living and communicating difficult. The September 2016 VA examiner also opined that the Veteran's tinnitus impacted his ability to work. The Veteran stated that his tinnitus gave him a nervous condition. A September 2016 VA examination diagnosed chronic otitis externa and healed perforation of the tympanic membrane. The September 2016 VA examiner indicated that the Veteran's ear condition impacted his ability to work. The Veteran stated that his hearing loss makes communication with others difficult, and his tinnitus makes him feel nervous and need to be preoccupied. The September 2016 VA examiner indicated that the Veteran's condition of left otitis media with perforations of the left tympanic membrane was asymptomatic. A February 2017 VA examination indicated that the Veteran worked in administration at Virginia Tech and retired in 2004 due to age or duration of work. The examiner noted that the Veteran had coronary artery bypass surgery in 1992 and 2003. The February 2017 VA examiner performed an interview-based METs test which indicated that the lowest level where the Veteran experienced dyspnea, fatigue, and chest tightness was 3-5 METs, which was consistent with activities like light yard work, mowing the lawn, and brisk walking. The February 2017 VA examiner opined that the Veteran's METs limitation level was not solely due to the Veteran's service-connected condition, however she stated that it was not possible to estimate the amount of the Veteran's METs limitation attributable to each medical condition. She further opined that the Veteran's IHD did not impact his ability to work. The February 2017 VA examiner indicated that the Veteran stated that he experienced shortness of breath, chest tightness, and inability to do strenuous exercises for 10 years. She opined that fatigue, incoordination, shortness of breath, dyspnea on exertion and chest pain does not limit the Veteran's functional ability in sedentary or prolonged or repeated physical activities. The February 2017 VA examiner stated that the Veteran's IHD had a minimal to no effect on the Veteran's employment status post his 1992 and 2003 coronary artery bypass surgeries. In April 2019 the Veteran submitted VA Form 21-8940, Veteran's Application for Compensation Based on Unemployability, and he listed IHD as the service-connected disability that prevented him from securing or following substantially gainful employment. He stated under employment history that he performed lab work at Virginia Tech from May 1972 to April 2004 for 60 hours per week. The Veteran indicated that he left this job because of his service-connected disability and stated that he has not tried to obtain employment since he became too disabled to work. A May 2019 VA examination indicated that the Veteran reported no new symptoms since his previous IHD examination. The May 2019 VA examiner stated that exercise test was not required as part of the Veteran's treatment plan and that the test carried significant risk. He performed the interview-based METs test which indicated that the lowest level where the Veteran experienced dyspnea, fatigue, and chest tightness was 3-5 METs, which was consistent with activities like light yard work, mowing the lawn, and brisk walking. The May 2019 VA examiner opined that the Veteran's METs limitation level was not solely due to the Veteran's service-connected condition, however he stated that it was not possible to estimate the amount of the Veteran's METs limitation attributable to each medical condition. He opined that the Veteran's IHD did not impact his ability to work. A July 2019 request for employment information in connection with claim for disability benefits filled out by the Veteran's former employer Virginia Tech indicated that the Veteran worked as a laboratory manager from April 1973 to April 2004. It stated that the Veteran worked 40 hours a week and in the last 12 months of his employment made $58,164.42. The employer indicated that the Veteran stopped working because he retired. A January 2022 VA examination indicated that in 2014 the Veteran experienced bleeding and was diagnosed with bladder cancer. He related that the Veteran went through one round of chemotherapy and reports frequency and urgency in urination. The neoplasm is noted as malignant, active and primary. The Veteran is not currently undergoing treatment, in watchful waiting status. The January 2022 VA examiner opined that the Veteran's bladder condition impacts his ability to work. He stated the Veteran was a retired college administrator and in the last 12 months the Veteran missed 0-1 week of work and due to his frequency and urgency regarding urination he must be close to a bathroom. Upon review of the evidence and resolving doubt in the Veteran's favor, the Board finds that a TDIU is warranted. His bladder cancer results in severe unreliability to perform or engage in work tasks due to urinary frequency and related bathroom breaks. His tinnitus causes a nervous condition and his loss of hearing makes living and communicating difficult. Further, his CAD results in difficulties with tasks requiring standing, walking, or any strenuous activity. This is supported by the lay statements of the Veteran. Given the Veteran's overall performance would be impacted from the sporadic and unpredictable nature of the Veteran's fatigue, tiredness, shortness of breath, urinary function, hearing loss and ringing in the ears, that is accompanied by feelings of anxiety, such would preclude him from securing and maintain substantially gainful employment. In reaching this conclusion, the Board has considered that VA examiners have not found his CAD or his hearing disabilities to impact his ability to work and that the Veteran's background may allow him to work in jobs which would be less physical, his work performance would still be impacted by the above referenced symptoms. In sum, the Board finds that the impairment stemming from his service-connected would reasonably preclude the ability to secure and maintain substantially gainful employment. 38 C.F.R. § 4.16 (a). Accordingly, entitlement to a TDIU is warranted. The Board has considered whether the Veteran is entitled to an award of special monthly compensation (SMC). See 38 C.F.R. § 3.350 (i)(1); see also Bradley v. Peake, 22 Vet. App. 280 (2008). After consideration of the facts of this case, the Board does not find that an SMC rating is for application. The above grant of TDIU was predicated upon the collective effect of the Veteran's disabilities, and there is no one disability ratable at 100 percent independent of the other service-connected disabilities. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.