Citation Nr: 22017940 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 16-33 695 DATE: March 27, 2022 ORDER Prior to October 1, 2019, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to October 1, 2019. CONCLUSION OF LAW The criteria for TDIU prior to October 1, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the Marine Corps from December 1968 to September 1970 and November 1972 to March 1976, in addition to prior inactive duty service. He is the recipient of, among other things, the Purple Heart Medal with gold star, the Silver Star Medal, the Bronze Star Medal with gold star, and the Vietnam Cross of Gallantry with palm and frame. The matter of entitlement to an increased rating for coronary artery disease came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision. In October 2018, the Board found that the claim for TDIU was part and parcel of the increased rating claim. The Board remanded the appeal for a TDIU in October 2018 and April 2021 to obtain a medical opinion and outstanding treatment records. In December 2021, the Board granted a TDIU from October 1, 2019 and remanded the appeal for a TDIU prior to October 1, 2019 for referral to the Director of Compensation Services. The requested development has been completed. Entitlement to a TDIU prior to October 1, 2019 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. Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). 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 nonexertional) 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. In March 2013, the RO received the Veteran's claim. Prior to October 1, 2019, the Veteran was in receipt of a combined 40 percent rating for coronary artery disease status post myocardial infarction, residuals of a gunshot wound to the left medial thigh, status post excision, osteochondroma, right tibia, and a history of rheumatic fever. Because his combined rating did not meet the percentage standards of 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16 (b). An Administrative Review of the claim for a TDIU was conducted by the Director, Compensation Service in January 2022. The Executive Director of Compensation Service determined that the evidence failed to support the contention that service-connected conditions prevented employment prior to October 1, 2019. As the appeal for a TDIU under 38 C.F.R. § 4.16 (b) has been considered by the Director of Compensation Service, the Board may now address whether a TDIU is warranted under 38 C.F.R. § 4.16 (b). The Board finds that evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to October 1, 2019. An August 2019 Application for Increased Compensation Based on Unemployability shows that the Veteran has a high school education and last worked as a mechanic from 1986 to 2012. He reported that in August 2012, he became too disabled to work due to coronary artery disease and arthritis. He reported that he was unable to perform the work that he did for nearly forty years. He reported that after a half-hour of work, he was forced to take a break and lie down. He reported that angina started after a little more stress, then he had to take a nitroglycerin pill. The Veteran reported in September 2021 that he had a heart attack in August 2012 and has been too weak to work since that time. Employment information submitted by Smokey Mt. Auto Service in August 2019 stated that the Veteran stopped working there in 2012 and he is "physically unable to perform mechanical work." An April 2015 VA examination shows that the Veteran experienced fatigue at greater than 5-7 METs, which was equivalent to fatigue with activities such as golfing, walking a flight of stairs, mowing the lawn, or yard work. The examiner stated that the Veteran would have difficulty preforming repetitive heavy lifting of engines and transmission due to fatigue with exertion. The examination also noted that coronary artery disease caused "difficulty performing repetitive heavy lifting of engines and transmission due to fatigue with exertion." A November 2019 VA contract opinion indicated that the Veteran is likely able to perform job activities with no restrictions, and the associated examination noted there is no objective evidence to document any chronic residuals that would impair the Veteran from any type of employment. He had a normal ejection fraction pursuant to his last echocardiogram. Additionally, there was no functional impairment from his 1970 gunshot wound that precluded any type of employment. The Board finds that the November 2019 opinion is inadequate. The examiner checked that the Veteran had no restrictions for job activities, but did not check restrictions for heavy work or even medium work, inconsistent with findings from contemporaneous medical records. In that regard, the April 2015 VA examination noted that the Veteran would have difficulty preforming repetitive heavy lifting of engines and transmission due to fatigue with exertion. Private treatment records show in July 2016 that a low workload was achieved, and the exercise stress testing was stopped due to fatigue. Private treatment records dated in 2017 show that the Veteran had episodes of chest pain and unstable angina. He used nitroglycerin for chest pain, increased his need to three times in the last month in March 2017. Episodes increased with stress. By the time the Veteran had his July 2021 VA examination, he had chronic congestive heart failure and dyspnea and fatigue at a workload rate of 1-3 METs. The Veteran worked post-service as a mechanic for over 30 years, has a high school education, and has not worked in any other fields. He reported that he stopped working in 2012 due to coronary artery disease as he was no longer able to perform the tasks, do heavy lifting, and had to lie down after an hour of mechanical work. The Board finds that the Veteran's report is credible and supported by medical evidence of record, lay evidence indicating that he stopped working after a myocardial infarction with stent placement, and it is supported by an employer statement indicating that he stopped working because he was not physically able to do the work of a mechanic. The Board finds that the Veteran has no other job experience outside of work as a mechanic. Based on the above evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful occupation consistent with his education, skills, training, and work history during the entire appeal period. Thus, resolving reasonable doubt in the Veteran's favor, prior to October 1, 2019, entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is granted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.