Citation Nr: 22019596 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 15-46 947 DATE: April 1, 2022 ORDER As of May 24, 2021, but no earlier, an individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, as of May 24, 2021, but no earlier, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW As of May 24, 2021, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2017 by the Department of Veterans Affairs (VA) Regional Office. In July 2020, the Board remanded the Veteran's claims of entitlement to service connection for a heart condition as well as a TDIU for additional development. In March 2021, the Board granted service connection for a heart condition and again remanded the claim of entitlement to a TDIU. Accordingly, the claim for a TDIU now returns for further appellate review. Entitlement to a TDIU. The Veteran contends that his service-connected vascular disease and coronary artery disease (CAD) have rendered him unemployable. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In Snider v. McDonough, No. 19-6707, (Vet. App. Nov. 19, 2021), the Court held the Board must address the Ray standard, i.e., whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" to require referral of the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16 (b), prior to reaching the question of whether the Veteran's service-connected disabilities render him unemployable. The Veteran's CAD was rated as 30 percent disabling prior to July 3, 2019, and 60 percent thereafter. He was service-connected for tinnitus with an assignment of a 10 percent rating as of November 12, 2016. Also, his vascular disease has been evaluated as 100 percent disabling from May 24, 2021 to August 8, 2021, and 10 percent disabling after August 8, 2021. For the period during which the Veteran's vascular disease was rated as totally disabling, the Veteran is also in receipt of special monthly compensation under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i). Therefore, his combined disability rating is 30 percent prior to November 12, 2016; 40 percent from November 12, 2016 until July 3, 2019; 100 percent from May 24, 2021 until August 8, 2021; and 70 percent thereafter. Thus, the Veteran does not meet the schedular threshold for a TDIU prior to July 3, 2019. With regard to the appeal period prior to such date, the Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16 (b) in the first instance. However, as previously noted, if there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to such date, the Board may refer the matter to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis. In the Veteran's September 2020 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability (TDIU application) the Veteran reported completing three years of high school and obtaining a GED. In his November 2017 TDIU application, the Veteran reported that he completed four years of high school. He also reported that he last worked as a driver and warehouse employee, and he indicated he became too disabled to work in July 2008. Here, the Veteran claimed that chest pain and residuals of his heart attack prevented him from working. He also reported that he worked as a carpet cleaning assistant part-time from March to July 2007, and as a warehouse worker and truck driver prior to such date on a full-time basis. In an October 2021 private vocational assessment, the Veteran also reported experience in housekeeping for many years and working on a garbage disposal truck prior to that. The Veteran has listed no training or education beyond his GED and military training, other than obtaining a chauffeur's license in 2004 and attempting welding school followed by a watch and jewelry repair certification program. After a review of the evidence of record, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to his thrombosis in 2021. In this regard, the evidence shows that the Veteran was able to continue working for at least three years following his heart attack and there were a host of other non-service-connected conditions that prevented him from working following his heart attack. With respect to the Veteran's service-connected tinnitus, a VA examiner found in January 2017 that the Veteran's tinnitus has no impact on his ordinary conditions of daily life, to include his ability to work. Such opinion was based on a review of the record as well as interview with the Veteran. In July 2021, a VA examiner evaluated many of the Veteran's other non-service-connected disorders and found that they also, collectively, impacted his ability to work. She specifically noted that the Veteran's non-service-connected lumbosacral strain, intervertebral disc syndrome, degenerative disc disease with spondylosis, and bilateral lower extremity radiculopathy produce difficulty standing, walking, sitting, and bending. She reported that the Veteran's non-service-connected bilateral knee strain with degenerative arthritis similarly resulted in difficulty walking, standing, squatting, and siting. She also acknowledged that the Veteran's non-service-connected cervical strain with degenerative arthritis prevents him from turning his head from side to side. Furthermore, both private and VA medical records throughout the period on appeal also indicate that the Veteran has been treated for and even hospitalized for non-service-connected gastrointestinal problems, with the most recent being a gastrointestinal bleed with extensive diverticulosis in 2021, and diabetes since 2009. Such records show that these non-service-connected disease processes have further impacted the Veteran's functional ability throughout the period on appeal. Regarding the Veteran's heart disability, an October 2013 VA examiner found that the Veteran's interview-based METs test revealed that he was capable of physical activity such as walking up a flight of stairs and doing heavy yard work. The examiner also specifically noted that the Veteran's non-service connected back disorder was a limiting factor for his METs level, in addition to his service-connected CAD. The resulting functional impact was identified as the need to rest a few minutes following physical exertion. It was specifically noted that the Veteran's heart condition still allowed him to participate in sedentary employment with no impact on his functional abilities. A December 2019 VA heart condition disability benefits questionnaire also documents a similar finding that symptoms of the Veteran's CAD preclude strenuous physical work but allow for sedentary work. Such opinion was based on an in-person examination of the Veteran along with review of the other evidence of record. The Board acknowledges a May 2019 medical opinion, in which a private examiner considered records pertaining to the Veteran's cardiac functioning and concluded that the Veteran was unable to work since 2005 as a result of his CAD symptomatology alone. However, the Board finds the rationale provided is based largely on statements of the Veteran which were not reconciled with other relevant evidence of record. Specifically, the examiner found that the Veteran quit working solely due to chest pain, which is in contrast with evidence of record indicating that his non-service-connected disabilities played a significant role in his quitting work. For example, the Board finds extremely probative an October 2008 statement submitted by Veteran in which he explained that he quit his job in July 2008 due to a combined worsening of his illnesses, but "mostly" due to his non-service connected back and knee pain. As the May 2019 private medical examiner failed to reconcile her opinion with such relevant evidence of record, the Board cannot rely on such opinion. The Board also acknowledges a January 2021 private vocational assessment, which states that the Veteran's service-connected heart condition prevented him from working after 2005. However, the analysis regarding the functional impact from the Veteran's service-connected heart condition appears to be predicated on an inaccurate factual basis. In this regard, the private examiner found that the Veteran attempted to work but could not after his heart attack, citing to the Veteran's report that he missed excessive amounts of work after this date. However, on the Veteran's two applications for a TDIU, he reported working until 2008 with only limited time lost due to illness. While the reports are not consistent on his VA Forms 21-8940, the Veteran reported missing, at most, 2 weeks and 2 days total during the year from August 2007 to July 2008, with a few additional days since 2005. In this regard, while the private examiner stated that the Veteran reported missing 2 days per week during this period of time, upon further review of the VA Form 21-8940, the Board notes that the Veteran reported only missing 2 weeks and 2 days total during that period. The private examiner also relied heavily on a note from August 2007 in which the Veteran's employer stated that the Veteran left his job voluntarily, explaining that the work was too hard for him, he had trouble lifting heavy equipment, and his heart problems and leg problems in combination prevented him from walking very much. However, the Board notes that this report acknowledges that it was the combined effects of the Veteran's heart disorder along with non-service-connected health problems that led to his decision to leave that job, according to his own report at the time. The January 2021 private examiner incorrectly cited this letter as support for the conclusion that the Veteran left work solely due to chest pain. The Board also finds relevant a March 2019 psychiatric examination report documenting that the Veteran described a history of quitting jobs due to an inability to get along with supervisors. Specifically, the Veteran mentioned disciplinary problems at his full-time job with the VA from 1989 to 1999. He further stated that there was not a single job from which he was fired. Rather, he stated that he just "walked off and quit" when he felt like he was given too much work or did not like the way his colleagues spoke to him. He admitted to a "real bad attitude" which prevented him from maintaining employment for many years. Also, in September 2021, another VA examiner concluded that the Veteran still experienced occupational and social impairment with reduced reliability and productivity due to his non-service-connected chronic adjustment disorder with depressive symptoms. Further, although the record shows the Social Security Administration (SSA) deemed the Veteran disabled as of July 11, 2008, such was based on a primary diagnosis of a degenerative disorder of the back, which is not service-connected. The Board finds especially probative that the Veteran applied for SSA disability compensation based on his back and his heart disability, but the SSA determination listed a primary disabling disorder of the back, with no secondary diagnosis contributing to the Veteran's disability. Accordingly, for most of the period on appeal, the Board finds that the Veteran's service-connected disabilities alone have not prevented him from securing or following a substantially gainful occupation. The Board acknowledges the Veteran's statements, as well as statements from his siblings and private medical records, demonstrating that the Veteran experienced chest pain during the period on appeal. However, as has been discussed, supra, the Board finds that the Veteran's chest pain alone for most of the period on appeal does not warrant a TDIU. However, resolving all doubt in favor of the Veteran, the Board finds that as of May 24, 2021, the date for which the Veteran is service-connected for a cerebral thrombosis associated with his service-connected CAD, a TDIU is warranted. In this regard, the July 2021 examiner considered residuals of the Veteran's June 2021 stroke and found that such resulted in functional impairment, to include serious difficulty ambulating, inability to transfer positions alone, and severe shaking and limited use of his left hand. Accordingly, the examiner found that such impacts the Veteran's ability to work. The October 2021 private vocational specialist also interviewed the Veteran and reported that, following his stroke, the Veteran requires a wheelchair for general ambulation, other than using a walker to get to the toilet or his shower chair. He also described significant shaking and limited use of his left arm. Accordingly, the private examiner found that the Veteran's service-connected thrombosis residuals prevent him from working. The Board finds that this portion of the October 2021 private assessment was supported by an adequate rationale and is consistent with the other relevant evidence of record. While the Board acknowledges the impact that the Veteran's service-connected disabilities, to include in combination, have had on his employability, which may limit the type of jobs he may secure, based on the foregoing, the Board finds that such do not preclude him from securing or following a substantially gainful occupation consistent with his education and work history prior to May 24, 2021. In this regard, the record reflects that the Veteran himself attributed his inability to work to, primarily, symptoms of his non-service-connected disorders. Consequently, based on the foregoing, the Board finds that, prior to May 24, 2021, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities such that referral to the Director for extra-schedular consideration is warranted prior to July 3, 2019, or that such rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history at any point prior to the date of service-connection for cerebral thrombosis. As the weight of the probative evidence is, therefore, against his claim for a TDIU prior to May 24, 2021, the benefit of the doubt doctrine is not applicable in the instant appeal and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.