Citation Nr: 22019934 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 15-11 714 DATE: April 3, 2022 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) prior to February 25, 2015, is denied. FINDING OF FACT Prior to February 25, 2015, the Veteran did not meet the criteria for entitlement to TDIU, and his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU prior to February 25, 2015, have not been met. 38 U.S.C. § 1155; 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 October 1964 to August 1969. He also served in the Georgia Army National Guard, which included a period of active duty for training from March 1961 to September 1961. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted entitlement to TDIU effective from February 25, 2015, which is the date on which the Veteran met the schedular requirement for the benefit under 38C.F.R. §4.16(a) based on a concurrent grant of a higher evaluation for his service-connected ischemic heart disease. The RO considered its decision to be a partial grant of the benefit sought on appeal and issued a statement of the case (SOC) for the issue of entitlement to TDIU prior to February 25, 2015. The Veteran perfected an appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2018. A transcript is of record. The Board remanded the Veteran's case for further development in February 2019 and December 2020. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may 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. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her 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 v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Prior to February 25, 2015, the Veteran was service-connected for ischemic heart disease to include arteriosclerotic coronary artery disease, status-post coronary artery bypass graft (10 percent from April 19, 2004, and 30 percent from November 15, 2007); surgical scars from a coronary artery bypass graft associated with ischemic heart disease (noncompensable from April 19, 2004); hypertension (noncompensable from November 15, 2007); type II diabetes mellitus with erectile dysfunction (20 percent from April 19, 2003); hydroceles (noncompensable from November 15, 2007); bilateral hearing loss (10 percent from November 15, 2007); and tinnitus (10 percent from November 15, 2007). His combined evaluation was 20 percent effective from April 19, 2003, 30 percent from April 19, 2004, and 60 percent from November 15, 2007. Thus, he did not meet the schedular requirements for TDIU prior to February 25, 2015. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to February 25, 2015. The Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). In an August 2010 VA Form 21-8940, the Veteran reported that his last job was in electrical maintenance, which ended in 2005. He indicated that he did not leave his job due to his disability and that his disability affected full-time employment beginning in 2009. He identified ischemic heart disease and diabetes mellitus as the service-connected disabilities preventing him from securing or following any substantially gainful occupation. The Veteran also stated that he was 67 years old and that no one would hire him. He further indicated that he had completed three years of college and technical training in the electrical and welding field. During the September 2018 hearing, the Veteran testified he had last worked in 2005 at the age of 62 in electrical maintenance. He stated that he retired because he was eligible and felt that he could not work anymore even though he would not get full benefits until age 65. He confirmed that he had completed three years of college and indicated that he did not participate in vocational rehabilitation. He also noted that he did not apply for any type of work or attempt any training between 2010 and 2015. The Veteran believed that he could not have performed in his field in which he was trained because it was rather physical. In addition to his heart disability and a fear of being injured at work, he explained that he would not be able to hear well for computerized tasks to execute job duties. A November 2010 VA examiner noted that the Veteran was unemployed, but that he remained independent in his activities of daily living. He indicated that the Veteran did not have symptoms or residual effects from his service-connected hydrocele and denied that the condition had any effect on his ability to work. The course of his diabetes mellitus was documented as being stable, and the Veteran also denied that it had any effect on his ability to work or that he had to avoid any strenuous activity to prevent hypoglycemic reactions. In addition, his hypertension was documented as being stable with no effects on his occupation, and he denied that his erectile dysfunction had any effect on his ability to work. With regard to his coronary artery disease, the Veteran reported that he has occasional angina, fatigue, and dizziness, and he denied having syncope. It was noted that he experiences dyspnea when participating in activities that required increased exertion, such as heavy lifting, jogging, brisk walking, and yard work. The Veteran told the November 2010 VA that he believed that he is not hired for jobs due to his heart condition, that he is not able to perform work that requires strenuous labor, and that employers view him as a liability. However, he did express a belief that he was able to work in a sedentary environment. A November 2010 VA audiological examiner indicated that Veteran's hearing loss and tinnitus may cause difficulty understanding conversations in a noisy situation and difficulty hearing high frequency noises, such as alerting beeps or whistles. However, the examiner found that the Veteran's hearing loss alone would not preclude him from obtaining or maintaining physical or sedentary employment. A May 2013 VA examiner noted that the Veteran is 70 years old, diabetic, and has coronary artery disease, which places him at greater risk to have another heart attack and possible heart surgery. She noted that that the Veteran would be an employment risk for any employer. However, the examiner found that the Veteran's coronary artery disease, diabetes mellitus, and scars did not impact his ability to work. A February 2015 VA examiner also found that the Veteran's diabetes mellitus and complications thereof did not impact his ability to work. A February 2015 VA examiner noted that the only impact of the Veteran's heart condition on his ability to work was shortness of breath with exertion. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). The Veteran undoubtedly had impairment as a result of his service-connected disabilities, as evidenced by his combined ratings prior to February 25, 2015. However, the evidence does not establish that the severity of his service-connected disabilities alone precluded gainful employment at that time. The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, although the Veteran did report difficulties associated with maintaining employment due to the fear of injuring himself at work and no longer being able to exert himself physically, the evidence shows that VA examiners found there was no functional impact due to diabetes mellitus and other service-connected disabilities and that they did not impact his ability to work. Although the Veteran expressed concerns with his heart impacting the ability to work and a VA examiner noted the functional impact, the effect of the Veteran's service-connected heart as described only indicates that the is unable to perform strenuous physical work. Indeed, the Veteran told the November 2010 VA examiner that he believed that he was able to work in a sedentary environment. The Board acknowledges that the Veteran's training is in the electrical field and that his job involved physical tasks. However, he has also reported completing three years of college education. The evidence shows that he did not attempt other trainings or apply for vocational rehabilitation. Rather, he retired when eligible. In summary, the evidence of record does not show that the Veteran's service-connected disabilities prior to February 25, 2015, prevented him from work that was sedentary in nature. For purposes of this decision, the Board uses the term "sedentary" to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). Moreover, the Veteran's age cannot be considered in determining whether he is entitled to TDIU. 38 C.F.R. §§ 3.341, 4.19. In addition, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment and not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Thus, even if the Veteran believes that an employer would not hire him, the fact remains that the evidence does not show that is incapable of performing less strenuous work. Based on the foregoing, the Board finds that the weight of the evidence is persuasively against the Veteran's claim. Thus, the Board finds that the requirements for TDIU prior to February 25, 2015, have not been met. See Lynch, No. 2020-2067, 2021 U.S. App. LEXIS at 37312. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.