Citation Nr: 23052182 Decision Date: 09/21/23 Archive Date: 09/21/23 DOCKET NO. 14-19 911A DATE: September 21, 2023 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for ischemic heart disease (IHD) (10% 12/28/2007). In January 2014, the Veteran testified at a Decision Review Officer hearing; the transcript is of record. In a June 2014 rating decision, an earlier effective date of October 31, 2007 was assigned to the grant of service connection for IHD. In December 2014, the Veteran testified at a Board hearing; the transcript is of record. The Veterans Law Judge (VLJ) who presided over the December 2014 hearing has since retired; the Veteran was afforded the opportunity for a new hearing another VLJ but elected to proceed without another hearing. In January 2016, the Board denied entitlement to an earlier effective date for the grant of service connection for IHD and remanded entitlement to an increased rating for IHD. In a May 2016 rating decision, a 60 percent disability rating was assigned to IHD, effective January 16, 2014. In October 2017, the Board denied increased ratings for IHD and took jurisdiction of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) and remanded the matter for further development. In an April 2020 rating decision, entitlement to a TDIU was denied. In a June 2020 decision, the Board denied entitlement to a TDIU. In November 2020, the Board denied the Veteran's Motion for Reconsideration. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 17, 2022 Memorandum Decision, the Board's June 2020 decision was set aside and remanded. On February 17, 2023, the Board dismissed the appeal pertaining to entitlement to a TDIU for lack of jurisdiction. In August 2023, the Board vacated the February 2023 Board's decision which dismissed entitlement to a TDIU. Service connection is in effect for IHD (10% 10/31/2007; 60% 01/16/2014); gout (20% 04/01/1994); arthritis, left knee (10% 04/01/1994), degenerative arthritis, lumbar spine (10% 04/01/1994), tinnitus (10% 04/01/1994), anxiety (10% 04/01/1994), diabetes mellitus, type II (10% 06/23/2010) residuals, injury of right elbow (0% 04/01/1994), and deafness (0% 04/01/1994). Thus, from January 16, 2014 his service-connected disabilities meet the schedular criteria for a TDIU; prior to such date his disabilities do not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16. In his April, June, and September 2019 VA Form 21-8940 Veterans Application for Increased Compensation due to Individual Unemployability he asserted that his IHD prevented him from securing gainful employment. He reported that he last worked full-time on November 30, 2011, but his disability affected his full-time employment on January 30, 2014. He had worked for the Maryland Stadium Authority until December 31, 2011. He reported that he has not been employed since he became too disabled to work on January 30, 2014. He reported attempting to obtain work in 2014 and 2015. While he reported significant earnings for the last 12 months the Veteran clarified this is from his spouse's earnings and a withdrawal from his individual retirement account. Per a VA 21-4192 Request for Employment Information he worked as a Director of Public Safety & Security from January 5, 1994 to November 30, 2011. It was indicated that he retired from regular duty. In January 2012, the Veteran submitted VA Form 28-1900 Disabled Veterans Application for Vocational Rehabilitation; he reported that he was unemployed. In February 2012, it was determined that he was eligible for vocational rehabilitation services. The Veteran asserted that he was unable to meet the physical demands of the career field that he was in thus he was requesting training to pursue a degree in Rehabilitation Counseling. A May 2013 VA Form 28-8872 Rehabilitation Plan reflects that he was going to complete an associate degree in Substance Abuse Counseling and secure and maintain employment working as a substance abuse counselor or in a related field. In December 2013 his Vocational Rehabilitation Plan that was developed on May 1, 2013 was closed due to the Veteran not initiating training at Anne Arundel Community College. In January 2014, the Veteran reported that he not begun training at Anne Arundel Community College because he was contemplating moving to another state. A January 30, 2014 IHD Disability Benefits Questionnaire (DBQ) completed by Dr. C.I., M.D., reflects that with regard to ability to work he gets shortness of breath. April 2019 and January 2020 examination reports from Dr. C.I. reflect that the Veteran's IHD impacts his ability to work from symptoms of angina and shortness of breath and that he would experience dizziness, fatigue, and shortness of breath on exertion. A June 2019 C&P examiner opined that the Veteran's diabetes mellitus, type II, is managed by restricted diet and that this disability does not impact his ability to work. An August 2019 C&P examiner opined that the Veteran would be capable of light work, including walking short distances and converse in full sentences. The examiner noted that the Veteran would not be able to perform prolonged walking, lifting, or carrying, or climb multiple flights of stairs. In an April 2020 statement from the Veteran he asserted that due to his IHD he experiences the following: I have a very difficult time staying awake during the day time, a condition that would not be acceptable by any prospective employer. It is my understanding that due to the cardiac condition I have insufficient levels of oxygen in my blood thereby causing a lack of energy and often falling asleep. It was necessary to have a Pace Maker implanted to insure that my heart rate maintains a minimum of 40 BPM. He also asserted that he has difficulty sleeping at night due to his nonservice-connected sleep apnea, and he believes his inability to sleep at night is related to his service-connected anxiety. His inability to sleep at night contributes to him falling asleep during the day. The Board finds that further opinions must be sought regarding the functional limitations associated with his service-connected disabilities related to his claim for a TDIU. The matter is REMANDED for the following action: 1. Request that an examiner(s) with appropriate expertise review the file to evaluate the impact of the Veteran's service-connected disabilities (IHD; anxiety; diabetes mellitus, type II; gout; arthritis, left knee; degenerative arthritis, lumbar spine; tinnitus; residuals, injury of right elbow; and deafness) on his ability to function in an occupational setting for the period from January 30, 2014. In this regard, comment on the Veteran's ability to function in an occupational environment for the period from January 30, 2014; document any education and work experience reported by the Veteran during the examination; and/or, describe any functional impairment caused solely by the service-connected disabilities for the period from January 30, 2014. Consideration is to be given to the opinions of record and the lay assertions of the Veteran. A comprehensive rationale is to be provided for all opinions expressed. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.