Back to BVA DecisionsMIXEDService Branch NAVY Special Benefit TDIU Diagnostic Code 7005 Docket No. 14-35 564A
ARTERIOSCLEROTIC HEART DISEASE (CORONARY ARTERY DISEASE)
V. CHIAPPETTA · 2024 · Case ID: 24017234
Summary
The veteran, who served honorably in the U.S. Navy from November 1965 to July 1969, appeals the denial of increased ratings for his service-connected coronary artery disease (CAD) with angina pectoris for three distinct periods: prior to April 20, 2016, from April 20, 2016, to August 12, 2021, and from August 12, 2021, onwards. The Board reviewed the applicable rating criteria under both former and current versions of 38 C.F.R. § 4.104, Diagnostic Code 7005, which are based on METs levels and specific cardiac manifestations. For the period prior to April 20, 2016, the Board found the evidence did not support a rating higher than 10 percent, citing METs testing results exceeding 7 METs and lack of evidence for cardiac hypertrophy or dilatation. For the period from April 20, 2016, to August 12, 2021, the Board denied a higher rating, noting no episodes of congestive heart failure and METs testing results above 3 METs, with ejection fractions generally at or above 50 percent. For the period from August 12, 2021, the Board also denied a higher rating, citing ejection fractions above 30 percent and METs levels above 3, with no evidence of chronic congestive heart failure. However, the Board granted entitlement to a total disability based on individual unemployability (TDIU) from August 12, 2021, finding that the veteran's combined service-connected disabilities, including CAD, diabetes, peripheral neuropathy, and hearing loss, precluded substantially gainful employment, resolving reasonable doubt in his favor. The Board noted the veteran's physical limitations from these conditions, including reduced endurance, inability to perform manual labor, and difficulties with sedentary tasks due to hearing loss, which significantly impacted his ability to perform work consistent with his prior physical occupations. The claim for TDIU prior to August 12, 2021, was remanded for further development and potential extraschedular consideration.
Rationale
Weight of the evidence persuasively against a rating in excess of 10 percent prior to April 20, 2016.; METs testing results during the period exceeded 7 METs, and no evidence of cardiac hypertrophy or dilatation was found.; Weight of the evidence persuasively against a rating in excess of 30 percent from April 20, 2016, to August 12, 2021.; No episodes of congestive heart failure found; METs testing results above 3 METs, and ejection fractions generally at or above 50 percent.; Weight of the evidence persuasively against a rating in excess of 60 percent from August 12, 2021.; No evidence of left ventricular dysfunction with ejection fraction less than 30 percent or chronic congestive heart failure.
Full Decision Text
Citation Nr: 24017234 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 14-35 564A DATE: April 23, 2024 ORDER Entitlement to a rating in excess of 10 percent for service-connected coronary artery disease (CAD) with angina pectoris prior to April 20, 2016 is denied. Entitlement to a rating in excess of 30 percent for service-connected CAD with angina pectoris from April 20, 2016 and prior to August 12, 2021 is denied. Entitlement to a rating in excess of 60 percent for service-connected CAD with angina pectoris from August 12, 2021 is denied. Entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU) from August 12, 2021 is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a TDIU on an extraschedular basis prior to August 12, 2021 is remanded. FINDINGS OF FACT 1. Prior to April 20, 2016, the Veteran's service-connected CAD with angina pectoris was not shown to be manifested by evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; nor was it shown that a workload of greater than 5 METs, but not greater than 7 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope. 2. For the period from April 20, 2016 and prior to August 12, 2021 the Veteran's service-connected CAD with angina pectoris was not manifested by more than one episode of acute congestive heart failure in a one year period; nor did a workload of greater than 3 METs, but not greater than 5 METs, result in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. For the period from August 12, 2021 the Veteran's service-connected CAD with angina pectoris CAD is not shown to have been manifested by left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent, or chronic congestive heart failure; nor has it been shown that a workload of 3 METs or less results in symptoms such as breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 4. In addition to his CAD with angina pectoris, the Veteran is service connected for type II diabetes mellitus, evaluated as 20 percent disabling from April 2, 2013; diabetic peripheral neuropathy of the right upper extremity evaluated as 20 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left upper extremity evaluated as 20 percent disabling from September 23, 2022; peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left lower extremity evaluated as 20 percent disabling from September 23, 2022; hearing loss evaluated as noncompensable (zero percent disabling) from April 2, 2013; and hypertension evaluated as noncompensable from August 10, 2022. 5. The Veteran first satisfied the schedular criteria for consideration of TDIU from August 12, 2021, and he has been unemployed throughout this period. 6. Resolving reasonable doubt in favor of the case, the record reflects it is at least as likely as not the Veteran's service-connected disabilities precluded substantially gainful employment during the period from August 12, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected CAD with angina pectoris prior to April 20, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7005. 2. The criteria for a rating in excess of 30 percent for service-connected CAD with angina pectoris from April 20, 2016 and prior to August 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4. prior to April 20, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7005. 2. The criteria for a rating in excess of 30 percent for service-connected CAD with angina pectoris from April 20, 2016 and prior to August 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7005. 3. The criteria for a rating in excess of 60 percent for service-connected CAD with angina pectoris from August 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7005. 4. The criteria for a TDIU from August 12, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from November 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which, in pertinent part, granted service connection for CAD with angina pectoris, evaluated as 10 percent disabling from April 2, 2012. The Veteran appalled, contending higher rating(s) were warranted for this disability. A subsequent October 2023 rating decision assigned a 30 percent rating for the service-connected CAD effective February 13, 2023, and 60 percent effective May 24, 2023. Thereafter, a December 2023 rating decision assigned an earlier effective date of April 20, 2016 for the 30 percent rating, and an August 12, 2021 effective date for the 60 percent rating. The Board has construed the issues on appeal to reflect this development. The Board notes that the June 2014 rating decision did not explicitly address the issue of entitlement to TDIU. However, the Board has previously determined that this issue is before it for appellate consideration in accord with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified before the undersigned at a January 2021 virtual hearing. A transcript has been associated with the claims file. This case was previously before it in May 2021, February 2022, and November 2022 when it was remanded for additional development. Most recently, the Board remanded the case in November 2022 for updated VA examination of the Veteran's service-connected CAD with angina pectoris. Additional examinations were accomplished in February 2023, May 2023, and August 2023. The Veteran has not challenged the accuracy of the most recent examination, the qualifications of that examiner, nor has he reported the service-connected disability has since increased in severity. In pertinent part, no such deficiencies were identified by his accredited representative in a February 2024 post-remand brief. The Veteran also indicated in a January 2024 statement that he had no additional information or evidence to provide, and wanted the Board to proceed to address his claim. All other development directed by the Board's remands in this case have been substantially accomplished, and it can proceed to address the merits of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which ake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, the Veteran has already received such "staged" rating(s) for his service-connected CAD with angina pectoris during the pendency of this appeal. The Veteran's CAD is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. The criteria for rating his disability were revised effective November 14, 2021, during the pendency of this appeal. See Schedule for Rating Disabilities: The Cardiovascular System, 86 Fed. Reg. 54,089 (Sept. 30, 2021) (codified at 38 C.F.R. § 4.104). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33, 422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to November 14, 2021, and both the old and new rating criteria from November 14, 2021. The criteria that is more favorable to the Veteran will be applied. Under former Diagnostic Code 7005, a 10 percent rating was warranted where a workload of greater than 7 METs (metabolic equivalents), but not greater than 10 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope; or when continuous medication was required. A 30 percent rating was warranted where a workload of greater than 5 METs, but not greater than 7 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating was warranted for more than one episode of acute congestive heart failure in the past year; or when a workload of greater than 3 METs, but not greater than 5 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A maximum 100 percent rating was warranted for chronic congestive heart failure; or when a workload of 3 METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The former regulation provided that one MET was the energy cost of standing quietly at rest and represented an oxygen uptake in the past year; or when a workload of greater than 3 METs, but not greater than 5 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A maximum 100 percent rating was warranted for chronic congestive heart failure; or when a workload of 3 METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The former regulation provided that one MET was the energy cost of standing quietly at rest and represented an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope developed was required for evaluation, and a laboratory determination of METs by exercise testing could not be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that resulted in dyspnea, fatigue, angina, dizziness, or syncope, could be used. Id., Note (2). The former regulations provided that even if the requirement for a 10 percent rating (based on the need for continuous medication) or 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) was met, METs testing was required in all cases except: (1) when there was a medical contraindication; (2) when the left ventricular ejection fraction had been measured and was 50 percent or less; (3) when chronic congestive heart failure was present or there had been more than one episode of congestive heart failure within the past year; or (4) when a 100 percent evaluation could be assigned on another basis. See former 38 C.F.R. § 4.100(b). Under the new rating criteria, in effect from November 14, 2021, the Veteran's disability is to be evaluated under the General Rating Formula for Diseases of the Heart. Under the revised criteria, a 10 percent rating is warranted where a workload of 7.1 to 10.0 METs results in heart failure symptoms; or continuous medication is required for control. A 30 percent rating is warranted where a workload of 5.1 to 7.0 METs results in heart failure symptoms; or there is evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent rating is warranted where a workload of 3.1 to 5.0 METs results in heart failure symptoms, and a 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. For coronary bypass surgery, a 100 percent rating is also warranted for three months following hospital admission for surgery. Id. Under the revised regulation, one MET is defined as it was previously. The new regulations provide that when the level of METs at which breathlessness, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. 86 Fed. Reg. 54,093 (codified at 38 C.F.R. § 4.104, Note (2)). The new regulations also provide that, for the new general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. Id., Note (3). The new regulations further provide that even if the requirement for a 10 percent rating (based on the need for continuous medication) or 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, METs testing is required in all cases except: (1) when there is a medical contraindication; or (2) when a 100 percent evaluation can be assigned on another basis. 86 Fed. Reg. 54,093 (codified at 38 C.F.R. § 4.100(b)). 1. Entitlement to a rating in excess of 10 percent for service-connected CAD with angina pectoris prior to April 20, 2016 The Bord finds that the weight of the evidence is requirement for a 10 percent rating (based on the need for continuous medication) or 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, METs testing is required in all cases except: (1) when there is a medical contraindication; or (2) when a 100 percent evaluation can be assigned on another basis. 86 Fed. Reg. 54,093 (codified at 38 C.F.R. § 4.100(b)). 1. Entitlement to a rating in excess of 10 percent for service-connected CAD with angina pectoris prior to April 20, 2016 The Bord finds that the weight of the evidence is persuasively against a rating in excess of 10 percent for the Veteran's service-connected CAD with angina pectoris prior to April 20, 2016, to include as additional "staged" rating(s). In pertinent part, a May 2014 VA examination noted that there was no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. That examination explicitly referred to a June 2003 echocardiogram, as well as a May 2013 angiogram. Nothing in the other evidence for this period demonstrates such impairment during this period. The Board further notes that it was not shown during this period that a workload of greater than 5 METs, but not greater than 7 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope due to the Veteran's service-connect CAD within angina pectoris. Rather, all such testing reflects he achieved a workload in excess of 7 METs during this period. For example, an October 2012 exercise treadmill test showed 9 METs. Records from March 2013 note that the Veteran had earlier onset symptoms earlier than the previous year, and that the test was performed for a total of 3 and 12 minutes compared to 8 minutes the prior year. However, it did not give the explicit results in METs. Subsequent records note that he achieved 8 METs on treadmill exercise test. Further, the May 2014 VA examination showed he achieved a METs level of 10. Nothing in the other evidence of record demonstrates the Veteran meets or nearly approximates the criteria for a rating in excess of 10 percent for his service-connected CAD with angina pectoris prior to April 20, 2016. For all these reasons, the Board must find that it was not factually ascertainable the Veteran's service-connected CAD with angina pectoris warranted a rating in excess of 10 percent prior to April 20, 2016. As noted, the evaluation criteria is based upon specific medical testing results, and the results during this period do not warrant a higher rating. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400; VAOPGCPREC 12-98; Swain v. McDonald, 27 Vet. App. 219 (2015). Consequently, this aspect of the Veteran's appeal must be denied. The Board notes that in making this determination it was cognizant that the Veteran underwent cardiac procedures during this period, to include stent placement. However, the record does not demonstrate such procedures warrant a higher rating under Diagnostic Code 7005, nor any other potentially applicable Diagnostic Codes found at 38 C.F.R. § 4.104 for evaluating disabilities of the cardiovascular system. Moreover, the record does not reflect these procedures warranted a temporary total rating in accord with the criteria found at 38 C.F.R. §§ 4.29 and/or 4.30. 2. Entitlement to a rating in excess of 30 percent for service-connected CAD with angina pectoris from April 20, 2016 and prior to August 12, 2021 The Board finds that the weight of the evidence is persuasively against a rating in excess of 30 percent for the Veteran's service-connected CAD with angina pectoris for the period from April 20, 2016 and prior to August 12, 2021. In pertinent part, the Veteran's service-connected CAD with angina pectoris was not manifested by more than one episode of acute congestive heart failure in a one year period. In fact, the record does not reflect evidence of congestive heart failure at any time during the pendency of this appeal, to include prior to April 20, 2016, and after August 12, 2021. For example, there was no evidence of such on any of the VA examinations conducted for the Veteran's CAD with angina pector of 30 percent for the Veteran's service-connected CAD with angina pectoris for the period from April 20, 2016 and prior to August 12, 2021. In pertinent part, the Veteran's service-connected CAD with angina pectoris was not manifested by more than one episode of acute congestive heart failure in a one year period. In fact, the record does not reflect evidence of congestive heart failure at any time during the pendency of this appeal, to include prior to April 20, 2016, and after August 12, 2021. For example, there was no evidence of such on any of the VA examinations conducted for the Veteran's CAD with angina pectoris during the pendency of this appeal to include June 2014, September 2021, May 2023, nor August 2023. Further, various treatment records stated there were no symptoms suggestive of heart failure to include in March 2020, September 2020, and March 2021. The Board further finds that there is no evidence that testing demonstrated that a workload of greater than 3 METs, but not greater than 5 METs, resulted in dyspnea, fatigue, angina, dizziness, or syncope at any time during the period from April 20, 2016 and prior to August 12, 2021. For example, treatment records from August 2017 note the Veteran achieved a METs of 7. Further, an October 2023 addendum opinion to the August 2023 VA examination found, in essence, that the first evidence of such a METs level was August 12, 2021, where it was shown to be 4.6. There is also no evidence during this period that the Veteran had a left ventricular dysfunction with an ejection fraction of 30 to 50 percent. For example, treatment records dated in August 2017 note an ejection fraction of 55 percent. The Board also notes that the VA examinations during the pendency of this appeal generally reflect an ejection fraction of 50 percent or more. In light of the foregoing, the Board must find that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 30 percent during this period, to include as additional "staged" rating(s). Stated another way, it was not factually ascertainable a higher rating(s) was warranted. Therefore, this aspect of the appeal is denied. 3. Entitlement to a rating in excess of 60 percent for service-connected CAD with angina pectoris from August 12, 2021 The Board finds that the weight of the evidence is persuasively against a rating in excess of 60 percent for the Veteran's service-connected CAD with angina pectoris for the period from August 12, 2021, to include as a "staged" rating(s). Initially, the Board notes the Veteran's service-connected CAD with angina pectoris CAD is not shown to have been manifested by left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. For example, the September 2021 VA examination noted that recent testing in August 2021 showed an ejection fraction of 50 to 55 percent. The subsequent May 2022 VA examination showed an ejection fraction of 50 percent. The February 2023 VA examination showed an ejection fraction of 51 percent. Nothing in the other evidence of record for this period demonstrates an ejection fraction of less than 30 percent. The Board also notes that there is no evidence of congestive heart failure at any time during the pendency of this appeal, to include the VA examinations conducted during this period such as the most recent examination in August 2023. The Board further finds it has not been shown that a workload of 3 METs or less results in symptoms such as breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope during the period from August 12, 2021 As noted, the October 2023 addendum opinion noted testing conducted August 12, 2021 demonstrated 4.6 METs was achieved. In addition, the VA examinations conducted during this period include findings that the Veteran was able to achieve a METs level greater than 3, to include the most recent examination in August 2023. In light of the foregoing, this aspect of the Veteran's appeal must be denied. 4. Entitlement to a TDIU The Board finds that the Veteran is entitled to a TDIU for the period from August 12, 2021. The Board acknowledges the Veteran has not submitted a VA Form 21-8940 (Veteran's 12, 2021 As noted, the October 2023 addendum opinion noted testing conducted August 12, 2021 demonstrated 4.6 METs was achieved. In addition, the VA examinations conducted during this period include findings that the Veteran was able to achieve a METs level greater than 3, to include the most recent examination in August 2023. In light of the foregoing, this aspect of the Veteran's appeal must be denied. 4. Entitlement to a TDIU The Board finds that the Veteran is entitled to a TDIU for the period from August 12, 2021. The Board acknowledges the Veteran has not submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). in conjunction with this case, even though he was requested to do so by correspondence mailed in November 2022. That Form requests information regarding the Veteran's occupational and educational history, which can be critical for resolution of a TDIU claim. Moreover, the United States Court of Appeals for Veterans Claims (Court) indicated in Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012), that failure to provide that Form or the equivalent information can constitute abandonment of a TDIU claim in accordance with 38 C.F.R. § 3.158. The Board notes, however, that the November 2022 correspondence did not state that failure to provide this Form or its equivalent could constitute abandonment of his claim. Moreover, while his failure to provide this Form was noted in the December 2023 Supplemental Statement of the Case (SSOC), his claim was not denied below on the basis of abandonment but on the merits of whether TDIU was warranted. Therefore, the Board finds it must also address the merits of this claim. A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with her education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, 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. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The foregoing notwithstanding, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), and evidence indicates that he or she is unemployable by reason of service-connected disability, the case should be referred to the Director of the Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). In addition to his CAD with angina pectoris, the Veteran is service connected for type II diabetes mellitus, evaluated as 20 percent disabling from April 2, 2013; diabetic peripheral neuropathy of the right upper extremity evaluated as 20 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left upper extremity evaluated as 20 percent disabling from September 23, 2022; peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left lower extremity evaluated as 20 percent disabling from September 23, 2022; hearing loss evaluated noncompensable from April 2, 2013; and hypertension evaluated as noncompensable from August 10, 2022. As such, he had a combined rating of 2, 2013; diabetic peripheral neuropathy of the right upper extremity evaluated as 20 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left upper extremity evaluated as 20 percent disabling from September 23, 2022; peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling from September 23, 2022; diabetic peripheral neuropathy of the left lower extremity evaluated as 20 percent disabling from September 23, 2022; hearing loss evaluated noncompensable from April 2, 2013; and hypertension evaluated as noncompensable from August 10, 2022. As such, he had a combined rating of 10 percent from April 2, 2012; 30 percent from April 2, 2013; 40 percent from April 20, 2016; 70 percent from August 12, 2022; and 90 percent from September 23, 2022. See 38 C.F.R. § 4.25. Therefore, he satisfied the schedular criteria for consideration of TDIU from August 12, 2021. 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, 22 Vet. App. at 452. Therefore, in 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 eighth 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). Neither a claimant's age nor the impairment caused by non-service-connected disabilities is for consideration in determining whether a TDIU is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran's DD Form 214 reflects he achieved at least a high school education. His VA examinations, and other evidence of record, note past work experience as a welder, salesman, and as a machine shop inspector. There are also references to his having worked as a trucker, and he noted having to give up his commercial driver's license at his January 2021 hearing. The Board acknowledges that the record does not explicitly identify when the Veteran stopped working. In pertinent part, treatment records from October 2010 note he was still working, while subsequent VA examinations note he was retired. However, it is clear he has been unemployed during the period from August 12, 2021. Granted, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, supra. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court provided a list of potentially relevant factors to be considered in determining whether a veteran can secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16. The Court found, in part, that consideration of a veteran's physical ability is necessary, with possible relevant factors including limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Here, the Veteran's CAD with angina pectoris results in various physical limitations. As noted, he can achieve a METs level of more than 3 but less than 5. The VA examinations note that this result has been found to be consistent with activities such as light yard work (weeding), mowing lawns (power mower), brisk walking (4 mph). In addition, at the September 2022 it was noted, in part, that the Veteran had given up exertional activities due to his CAD with angina pectoris. At his May 2022 lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Here, the Veteran's CAD with angina pectoris results in various physical limitations. As noted, he can achieve a METs level of more than 3 but less than 5. The VA examinations note that this result has been found to be consistent with activities such as light yard work (weeding), mowing lawns (power mower), brisk walking (4 mph). In addition, at the September 2022 it was noted, in part, that the Veteran had given up exertional activities due to his CAD with angina pectoris. At his May 2022 VA examination, he reported that if he walked too fast or goes out and rakes the leaves for more than 10 minutes and how much he exerts himself while raking will get anginal pain. At the May 2023 VA examination, he was found to have limited endurance, and that he could not perform prolonged walking, prolonged standing, and no repetitive lifting of more than 10 lbs. At the most recent examination in August 2023, he reported he has angina with mild to moderate exertion and was no longer able to shovel snow, push a lawn mower, or carry a clothes basket. The record also reflects physical limitations due to his service-connected peripheral neuropathy of the upper and lower extremities, to include standing, walking, grasping, and typing. For example, at a pertinent November 2022 VA examination, the Veteran reported that it prevented him from being able to act as quickly as previously. He also noted feeling "slowed down", and that this keeps him from being able to appropriately grip anything or function appropriately. A subsequent February 2023 VA examination noted functional impairment due to these service-connected disabilities such as loss of tactile sensation in hands and feet and no longer can feel small objects. A May 2023 VA examination stated he could not perform any real manual labor with his hands, and no prolonged standing or crouching. The Veteran also has audio limitations due to his service-connected hearing loss. For example, a May 2023 VA examination noted it was hard for him to hear high pitched sounds. Regarding the Veteran's service-connected diabetes mellitus, the Board notes that a May 2023 VA examination opined that the diabetes itself did not impact work, but his complications of CAD and peripheral neuropathy prevented physical work. However, a prior VA examination in May 2014 indicated impairment associated with his need for restricted diet. In pertinent part, it was indicated he had to maintain a specific schedule to accommodate these restrictions. Further, it was noted on the September 2021 heart conditions examination that he gave up applying for his DOT license because he did not believe he was a good candidate because of his CAD and diabetes. In regard to the service-connected hypertension, the Veteran reported at a November 2022 VA examination that it made him easily winded and fatigued with simple activities. The Board further notes that May 2023 VA examinations include opinions to the effect the Veteran could not perform physical work due to his CAD and/or peripheral neuropathy. Granted, an October 2023 addendum opinion concluded that sedentary employment would be possible with the Veteran's METs level. Although that opinion did not explicitly define sedentary employment, the Board notes that the May 2014 VA examinations able to perform sedentary tasks such as keyboarding, phone and other office type functions without difficulty. For the purposes of this case, the Board finds sedentary employment to be consistent with these type of activities. The Board notes, however, that the Veteran's work experience has been primarily physical in nature. As such, it would preclude most jobs associated with his work history. Moreover, the October 2023 opinion only addressed the impairment associated with the service-connected CAD with angina pectoris. It did not take into account his other service-connected disabilities such as the diabetes mellitus, hypertension, hearing loss, and peripheral neuropathy of the upper and lower extremities. The record reflects the impairment associated with the other service-connected disabilities would cause additional impairment with the type of jobs consistent with the Veteran's work history. The Board further finds that, from August 12, 2021, the impairment associated with the Veteran's service-connected disabilities would cause problems with performing the type of sedentary activities noted in the May 2014 VA examination. For example, his service-connected hearing loss would make it difficult to engage in activities such as working the phone and other activities associated with communication. Further, the impairment associated with his service-connected CAD and diabetes reflects he would only be able to work a limited/restricted schedule during this period. He would peripheral neuropathy of the upper and lower extremities. The record reflects the impairment associated with the other service-connected disabilities would cause additional impairment with the type of jobs consistent with the Veteran's work history. The Board further finds that, from August 12, 2021, the impairment associated with the Veteran's service-connected disabilities would cause problems with performing the type of sedentary activities noted in the May 2014 VA examination. For example, his service-connected hearing loss would make it difficult to engage in activities such as working the phone and other activities associated with communication. Further, the impairment associated with his service-connected CAD and diabetes reflects he would only be able to work a limited/restricted schedule during this period. He would have even greater impairment in performing such activities when taking into account the impairment associated with his peripheral neuropathy of the upper and lower extremities, for which service connection has been established from September 23, 2022. In light of the foregoing, the Board finds the record reasonably establishes that the symptomatology associated with his service-connected disabilities during the period from August 12, 2021 reflects a significant impact on his ability to continue in his prior work as a trucker, welder, and machine shop inspector. Moreover, these disabilities would be a severe impediment to transitioning to a different field of work consistent with his education and experience. In the Board's view, he likely has been capable of no more than marginal employment during the period from August 12, 2021, consistent with his education and work history; and even more so with his peripheral neuropathy of the upper and lower extremities from September 23, 2022. Marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a). The Board also notes that the law mandates that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant, to include with respect to the degree of disability. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence available for review is at least in approximate balance as to whether his service-connected disabilities prevented him from securing or following a substantially gainful occupation during the period from August 12, 2021. Therefore, a TDIU is warranted for this period. REASONS FOR REMAND Entitlement to a TDIU prior to August 12, 2021 is remanded. As noted, the Veteran does not satisfy the schedular criteria for consideration of a TDIU prior to August 12, 2021. Where the schedular criteria for a TDIU are not met, but the veteran is still unemployable by reason of service-connected disabilities, VA is to submit the case to the Director, Compensations Service, for extraschedular consideration via remand. 38 C.F.R. § 4.16(b). The Board is prohibited from adjudicating entitlement to a TDIU on an extraschedular basis in the first instance. See 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (citing Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995). In Snider v. McDonough, the Court clarified the standard by which VA is to determine whether referral for extraschedular consideration for a TDIU is appropriate. 35 Vet. App. 1 (2021). The Court held that VA is to consider whether there is sufficient evidence to substantiate a "reasonable possibility" that the veteran at issue is unemployable because of service-connected disabilities. 35 Vet. App. at 17 (citations omitted). The Court noted that a decision regarding whether referral is appropriate is analogous to a determination as to whether a VA examination is warranted under McClendon v. Nicholson, 20 Vet. App. 79 (2006). The agency of original jurisdiction (AOJ) had previously determined this case did not warrant such referral for consideration of a TDIU on an extraschedular basis. However, the Board finds that such referral is warranted in this case. Therefore, a remand is required. As a remand is otherwise required in this case, the Board finds that the Veteran should be provided another opportunity to submit a is unemployable because of service-connected disabilities. 35 Vet. App. at 17 (citations omitted). The Court noted that a decision regarding whether referral is appropriate is analogous to a determination as to whether a VA examination is warranted under McClendon v. Nicholson, 20 Vet. App. 79 (2006). The agency of original jurisdiction (AOJ) had previously determined this case did not warrant such referral for consideration of a TDIU on an extraschedular basis. However, the Board finds that such referral is warranted in this case. Therefore, a remand is required. As a remand is otherwise required in this case, the Board finds that the Veteran should be provided another opportunity to submit a VA Form 21-8940 or its equivalent. The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA Form 21-8940 if he wishes to continue to pursue the issue of her entitlement to a TDIU for the period prior to August 12, 2021. If he does not wish to pursue a claim for a TDIU for this period, he should be asked to state that fact in writing. 2. Refer the Veteran's case to the Director of the Compensation Service for consideration of whether TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for any or all of the period prior to August 12, 2021. 3. After completing the above, and any other development as may be indicated, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. V. Chiappetta Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.