Citation Nr: 1314713	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  07-25 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire


THE ISSUE

Entitlement to an effective date earlier than June 16, 2008 for the award of a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel
INTRODUCTION

The Veteran (appellant) served on active duty from November 1965 to August 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, in which the RO, in pertinent part, granted entitlement to a TDIU, effective June 16, 2008.  The Veteran testified before a Veterans Law Judge (VLJ) in April 2008 in association with this appeal.  A transcript is of record.  

In a December 2009 decision, the Board denied entitlement to increased ratings for a lumbosacral strain superimposed on L5-S1 with spondylolisthesis, evaluated as 20 percent disabling prior to June 16, 2008 and 40 percent disabling effective that date.  The Board noted that, in August 2008, the Veteran had submitted a claim for a TDIU and referred this matter to the RO for appropriate action.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In a November 2010 Joint Motion for Remand, the Secretary of Veterans Affairs (VA) and the Veteran, through his attorney, moved that the portion of the December 2009 Board decision which referred the claim for a TDIU to the RO be remanded.  The parties specifically noted that the remand was solely for the purpose of allowing the Board to address its referral rather than remand of the issue of entitlement to a TDIU.  The parties agreed that there was no error with respect to the schedular ratings assigned and that that portion of the decision should not be disturbed.  The Court granted the motion by Order in November 2010.

The Board remanded this issue for additional development in February 2011.  It returns now for appellate consideration.  While this case was pending on remand, the VLJ who presided at the Veteran's April 2008 hearing retired from the Board.  The Veteran was sent a December 2012 letter asking whether he wanted to testify before another VLJ in association with this appeal.  His representative responded in January 2013 that he did not want another hearing and that the Board should proceed to a decision. 
FINDINGS OF FACT

1.  An informal claim was made on February 23, 2006, in the form of a VA treatment note indicating a worsening in his service-connected lumbosacral strain superimposed on L5-S1 with spondylolisthesis.

2.  Prior to April 24, 2006, the Veteran was service-connected for lumbosacral strain superimposed on L5-S1 with spondylolisthesis, rated as 10 percent disabling.

3.  From April 24, 2006 to May 25, 2006, the Veteran was service-connected for lumbosacral strain superimposed on L5-S1 with spondylolisthesis, rated as 20 percent disabling and for right leg radiculopathy, rated as 10 percent disabling.

4.  From May 26, 2006, to June 15, 2008, the Veteran was service-connected for lumbosacral strain superimposed on L5-S1 with spondylolisthesis, rated as 20 percent disabling, depression, rated as 30 percent disabling, diabetes mellitus, type 2, rated as 20 percent disabling, and for right leg radiculopathy, rated as 10 percent disabling.  

5.  The Veteran's combined schedular ratings prior to June 16, 2008 do not meet the schedular requirements for assignment of a TDIU.

6.  The Veteran's service connected disabilities are of such severity as to preclude substantially gainful employment when considering his employment history, educational and vocational attainment as of February 23, 2006.

7.  No increase in the Veteran's service-connected lumbosacral strain superimposed on L5-S1 with spondylolisthesis was factually ascertainable in the year prior to February 23, 2006.  



CONCLUSION OF LAW

The criteria for assignment of a total disability rating based on individual unemployability are met as of February 23, 2006, but no earlier, on an extraschedular basis.  38 C.F.R. §§ 3.340, 4.16(a) and (b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for an earlier effective date for the award of TDIU.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

The appeal has been granted effective February 23, 2006, as discussed below.  As such, the Board finds that any error related to the duties to notify or assist on that portion of the appeal is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).  The Board has denied an effective date earlier than February 23, 2006, because an increase in disability was not factually ascertainable prior to that date.  

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Id.  The RO raised the issue of TDIU in a June 2008 rating decision, which deferred adjudication of the issue.  A July 2008 notice letter of that rating decision provided notice of all the elements required.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  Initial adjudication of the TDIU issue occurred in February 2009.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran's Social Security Administration records have been associated with the file.  The Veteran has stated that all of his treatment between 2001 and 2006 was through VA, records of which have been associated with the claims file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).  The issue in this appeal is retrospective.  When there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted.  Chotta v. Peake, 22 Vet. App. 80 (2008).  A February 2012 VA medical opinion regarding the Veteran's level of disability was obtained on remand.  The Board has found that opinion probative and used it to award an earlier effective date for TDIU.  The examiner found that an increase in disability was not ascertainable prior to February 23, 2006.  The Board agrees, as discussed below.  The Board finds that this adequately addresses the relevant questions in this case.  This is discussed in greater detail below.  

The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  The Board remanded the TDIU issue in February 2011.  The Board instructed that 1) the Veteran be asked to identify all treatment providers between October 2001 and June 2008, 2) his SSA disability records be obtained, and 3) that a medical opinion regarding the Veteran's employability prior to June 16, 2008 be obtained.  The RO was also to address extraschedular TDIU in adjudicating the claim.  The Veteran has indicated that he sought only VA treatment between 2001 and 2008.  His SSA records have been obtained.  A February 2012 medical opinion was also obtained.  The RO referred the claim for extraschedular consideration and addressed the issue in the December 2012 supplemental statement of the case.  The Board finds that the RO complied substantially with February 2011 remand instructions.  Further remand for additional development of the prior remand instructions is not warranted.  See Stegall.

Earlier Effective Date for TDIU

The Veteran's representative has argued that the Veteran's TDIU rating should either be made effective November 2001 or April 24, 2006.  For the following reasons, the Board finds that the Veteran's claim arises from a February 23, 2006 claim and that the criteria for a schedular TDIU rating were not met prior to June 16, 2008, and that the criteria for an extraschedular rating were met as of February 23, 2006.  The Board concludes that the criteria for an effective date of February 23, 2006, but no earlier, have been met.  

A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.  A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. §§ 3.1(p), 3.155(a) (2012).  See Servello v. Derwinski, 3 Vet. App. 196 (1992).

Except as otherwise provided, the effective date of an award based on an original claim or a claim for an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim.  The effective date of an award of increased compensation shall be the earliest date at which it is ascertainable that an increase in disability has occurred, if the claim for an increased rating is received within one year from such date, otherwise the date of receipt of the claim.  38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o).  The award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time.  See also VAOGCPREC 12-98.  

Determining whether the effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable."  See Hazan v. Gober, 10 Vet. App. 511, 521 (1992).

The United States Court of Appeals for Veterans Claims has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App. 125, 126 (1997).  Thus, three possible dates may be assigned depending on the facts of the case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Harper, 10 Vet. App. at 126.  Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).  

In light of the aforementioned law and regulations, the essential questions before the Board are (1) on what date the TDIU claim was filed and (2) when was it factually ascertainable that a TDIU was warranted?

The Veteran's representative filed a December 2010 brief arguing that TDIU should be effective November 2001 on the basis of an October 2009 vocational opinion.  The Veteran's representative filed a December 2012 brief arguing that TDIU should be effective April 24, 2006.  Neither brief made any attempt to apply the law regarding the receipt of claims to the evidence of record.

Prior to the instant appeal, the Veteran was service-connected only for lumbosacral strain superimposed on L5-S1 with spondylolisthesis.  He filed a February 1998 claim for an increased rating.  A 10 percent rating was awarded in a May 1998 rating decision.  He was notified of the decision and provided notice of his procedural and appellate rights with a VA Form 21-8764 in May 1998.  No communications or evidence were received within one year of the May 1998 notice.  The Board concludes that the May 1998 rating decision became final.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 3.104 (2012).  

The Board notes that there are two statutory exceptions to the rule of finality.  First, pursuant to 38 U.S.C. § 5108, the Secretary must reopen a claim if new and material evidence regarding the claim is presented or secured.  Second, a decision is subject to revision on the grounds of clear and unmistakable error.  38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board).  These are the only statutory exceptions to the finality of VA decisions.  Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).

New and material evidence does not vitiate the finality of a prior final decision, except when new and material evidence in the form of additional service department records has been received.  See 38 C.F.R. § 3.156 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006).  New service department records have not been received.  The first exception to finality does not apply.  See Cook.  

While the Veteran has disagreed with the effective dates assigned for TDIU, he has not filed a claim for clear and unmistakable error (CUE) with regard to any final decisions.  A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period.  In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error.  As no CUE has been alleged in the unappealed May 1998 rating decision, this decision is final and the effective date for a grant of a higher rating necessarily must be after the date of this decision.  See 38 C.F.R. §§ 3.105, 3.400.  The second exception to finality does not apply.  See Cook.  

The effective date of TDIU must be based on the filing of a new claim after the May 1998 rating decision.  The next communication received by the RO from the Veteran was a claim for an increased rating for his service-connected lumbosacral strain superimposed on L5-S1 with spondylolisthesis, which was received by the RO on April 24, 2006.  This is the present effective date of the 20 percent rating for that disability.  

The law provides that claims may be based on evidence other than a claim or evidence received by a RO.  A VA report of examination or hospitalization may also be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(a) (2012).  These provisions apply once a formal claim for compensation or pension has been allowed.  Acceptance of a report of examination or treatment meeting the requirements of 38 C.F.R. § 3.157 as a claim for increase is subject to the payment of retroactive benefits from the date of a report or for a period of one year prior to the date of receipt of the report.  As the Veteran was service connected for lumbosacral strain between May 1998 and April 2006, the Board will determine whether an informal claim was made between these dates.  

For reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital.  For reports prepared by a non-VA hospital where the veteran was maintained at VA expense, the date of admission to the hospital is accepted as the date of receipt of claim if VA maintenance was authorized prior to admission.  38 C.F.R. § 3.157(b)(1).  For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim.  38 C.F.R. § 3.157(b)(2-3).

The purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened.  Massie v. Shinseki, 25 Vet. App. 123, 132 (2011).  The Veteran was not hospitalized for his low back disability by VA or at VA expense between May 1998 and April 2006.  He did not receive any VA examinations in conjunction with other claims during that time.  The record does not contain any treatment through the uniformed services between May 1998 and April 2006.  The Veteran was also not maintained at a non-VA hospital at VA expense during that period.  No reports from private physicians, laymen, and state and other institutions were received during that period.  The Veteran received treatment through the Boston, Massachusetts, and Manchester, New Hampshire, VA Medical Centers from June 1998 through to the present.  The Board has reviewed his treatment records to determine whether an informal claim was made.  

A January 2001 primary care note mentions low back syndrome as unchanged when he sought treatment for a painful left great toe.  The "unchanged" entry cannot support a finding of worsening.  See Massie, 25 Vet. App. at 132.

A July 2005 emergency department note states that the Veteran was complaining of right hip pain for the previous 6 days which was worse once lying down.  The pain started at his hip and traveled to his ankle.  The Veteran called the pain "sciatica."  A February 2012 VA examination report explains that he was ultimately diagnosed with trochanteric bursitis of the right hip.  

Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, 492 F.3d 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran does not have medical knowledge or training.  Accordingly, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Although the Veteran is competent to report pain, the July 2005 treatment note indicates that "sciatica" was how the Veteran described his pain.  The record is not clear how the Veteran could distinguish between pain from sciatica and pain from some other cause on the basis of lay observable symptoms.  The record reveals that, at the time, the Veteran had not been previously diagnosed with sciatica which might have afforded him a basis to compare the pain.  The comment does not appear to be a report of contemporaneous medical diagnosis because it is a description at initial treatment.  As such, the Board places little probative value on the Veteran's self diagnosis of "sciatica."  See Jandreau, 492 F.3d at 1377 n.4.  

The February 2012 VA examination report is, however, a competent medical opinion regarding the diagnosis and etiology of the July 2005 pain.  The opinion was based on the Veteran's VA treatment records and contemporaneous medical evaluation.  The Board places great weight on the medical opinion.  See Jandreau.  

In light of the foregoing, the Board finds that the July 2005 treatment note does not constitute a VA examination showing a worsening of the service-connected low back disability.  The Veteran attributed it to his low back, but his opinion is greatly outweighed by the medical evidence of record.  The medical evidence shows that this pain was not the result of his service-connected disability.  Thus, it does not show worsening of the service-connected disability.  See Massie.  The July 2005 note is not an informal claim for an increased rating.  See 38 C.F.R. § 3.157(b).

A February 23, 2006 note states that the Veteran had low back pain with occasional radiation to the right lower extremity.  This visit led to additional treatment.  In particular, the Veteran underwent x-ray studies in March 2006.  These were interpreted to show increased degenerative disc disease at L5-S1 compared to April 1998 studies.  

The Board notes that the April 1998 X-ray studies were conducted as part of a VA examination in conjunction with the earlier increased rating claim.  The Veteran had no complaints of radiating pain at that time.  The Board finds that the January 2001 primary care note is not an informal claim under 38 C.F.R. § 3.157(b)(1) because it does not suggest worsening of the service-connected disability.  See Massie.  The July 2005 report is not an informal claim because he was not treated for his service connected disability despite his claim of "sciatica."  The Board finds that the February 23, 2006 treatment report was an informal claim under 38 C.F.R. § 3.157(b)(1).  See id.  The Board finds that an informal claim was received on February 23, 2006.  

The remaining question for an earlier effective date is whether the increase in disability such that TDIU was warranted was factually ascertainable prior to the current effective date of June 16, 2008, to include in the year preceding February 23, 2006.  See Hazan, supra.  The Board turns to the criteria for TDIU.

TDIU ratings are evaluated both on schedular and extraschedular bases.  See 38 C.F.R. § 4.16.  Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable 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 service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  

Prior to April 24, 2006, the Veteran was service-connected only for lumbosacral strain superimposed on L5-S1 spondylolisthesis rated as 10 percent disabling.  Effective April 24, 2006, he was awarded service connection for right leg radiculopathy, rated as 10 percent disabling, and his lumbosacral strain rating was increased to 20 percent.  See 38 C.F.R. § 4.25.  His combined rating was 30 percent.  Effective May 26, 2006, he was awarded service connection for depression rated as 30 percent disabling and diabetes mellitus, type 2, rated as 20 percent disabling.  His combined rating was 60 percent without a single disability rating of at least 40 percent.  

Those disabilities arising from a common etiology may be combined as one for the purposes of meeting the schedular minimum.  See 38 C.F.R. § 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.  

The Veteran's representative argued in a December 2012 brief that the Veteran's conditions all arose from service in Vietnam and should all be considered of common etiology together.  The Veteran does not have multiple disabilities of the extremities or disabilities from multiple injuries in action.  He was not a prisoner of war.  His service-connected disabilities are all of different body systems, musculoskeletal, endocrine, neurological and neuropsychiatric.  The Veteran's service-connected lumbar spine disability resulted in right lower extremity radiculopathy and depression, which were service connected on a secondary basis and are of a common etiology.  The diabetes mellitus, type 2, however, is the result of herbicide exposure.  There was no single accident resulting in the back disability and diabetes mellitus, type 2.  Furthermore, etiology is a medical term of art.  To apply the "common etiology" in such a way as to cover all disabilities ultimately incurred in service would render the regulatory scheme meaningless.  The Board finds that the diabetes mellitus, type 2, is not of a common etiology with the other service connected disabilities.  

The disability ratings for the low back disorder, right leg radiculopathy, and depressive disorder may be combined as they result from a common etiology (lumbosacral strain superimposed on L5-S1 spondylolisthesis).  The combined rating for these disabilities is 50 percent from May 26, 2006.  38 C.F.R. § 4.25.  As stated in the Introduction, the Veteran, through his attorney, agreed that there was no error with respect to the schedular ratings assigned and that he abandoned those issues.  The schedular ratings are final and the Board cannot now reconsider them.  Thus, the schedular criteria for TDIU were not met prior to June 16, 2008.  See 38 C.F.R. § 4.16(a).  A schedular TDIU cannot be awarded prior to June 16, 2008.  

However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).  

To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  In reaching such a determination, 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).

Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 4.15.

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

The Veteran's representative has filed a December 2010 brief that relied on an October 2009 evaluation by a vocational rehabilitation specialist that the Veteran's spinal disability rendered him unable to work as of November 2001.  The representative argued further that the effective date of TDIU should be in November 2001.  The Board notes that November 2001 is more than one year prior to February 23, 2006.  This would mean that the increase in disability was factually ascertainable more than one year prior to the date of claim.  In such a situation, the effective date would be the date of claim, February 23, 2006.  See 38 C.F.R. § 3.400; Hazan, supra.  The assignment of November 2001 as the effective date of TDIU is without foundation in the law.  

The Veteran's representative submitted an October 2009 vocational assessment in support of this claim.  The opinion was that the service-connected back disability prevented substantially gainful employment as of 2001.  The opinion indicates that the Veteran had stopped working in 2001 because of low back problems.  It further states that the Veteran returned to work briefly in the fall of 2003, but again quit working due to back problems.  

The Board finds this opinion deeply flawed.  The Veteran's SSA file shows that he stopped working in 2001 due to respiratory problems and sleep apnea.  A February 2001 treatment note states that the Veteran was working as a professional driver.  A January 2002 treatment note states that he complained of being unable to work due to sleepiness.  He was evaluated for and diagnosed with severe sleep apnea.  The Veteran filed for initial benefits in October 2001.  Although he was awarded SSI benefits in January 2003, he returned to work in October 2003 to get enough credits to qualify for full disability benefits.  The Board notes that the employer was an excavation company.  He filed a new claim in November 2003, stating that he lied to get work in October 2003, that he could no longer perform the work, and that he had sleep apnea and severe respiratory problems.  He described his ability to work as limited by having a problem staying awake and a very difficult time breathing.  The Veteran was awarded SSA disability benefits in February 2004.  The decision code sheet lists the date disability began as October 2003 with a primary diagnosis of sleep apnea/chronic obstructive pulmonary disease (COPD) and a secondary diagnosis of obesity.  The Veteran is not service connected for sleep apnea, COPD, or obesity.  There is no reference to a back disability preventing work.  

The Board remanded this case for a VA medical opinion as to whether or not the Veteran's service-connected disabilities precluded substantially gainful employment consistent with his education and occupational experience prior to June 16, 2008.  

A February 2012 medical opinion was obtained.  The physician's opinion was that the Veteran became unable to obtain and maintain substantially gainful employment consistent with his education and experience due solely to his service-connected lumbar spine condition and right leg radiculopathy in approximately the end of 2005 or early 2006 time frame.  The physician noted there was no evidence that the Veteran was unable to work solely due to his service-connected back condition prior to the documented worsening of the condition in late 2005/early 2006.  The physician disagreed with the October 2009 vocational opinion that the Veteran had been disabled in November 2001, stating that the evidence showed the inability to work in 2001 was due solely to non service-connected disabilities.  The examiner pointed to the June 2006 VA examination report showing that the Veteran was unable to walk more than a few yards without severe pain, did not appear steady using a cane, and was using hydrocodone for pain relief.  

Following the February 2012 opinion, the RO referred the effective date issued to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) in August 2012.  The RO suggested an effective date of April 24, 2006, the date of receipt of the claim for an increase.  

The Director of the Compensation Service issued a November 2012 opinion denying an extraschedular TDIU.  The Board notes that the opinion did not consider the Veteran's employment history or his educational or vocational attainment, focusing only on the medical findings and distinguishing between the Veteran's service connected and non-service connected disabilities.  

The Veteran's employment history is sparse but oriented toward manual labor.  His SSA filing shows that he did not have enough employment credits in 2002 to qualify for disability benefits despite his age.  This indicates a lack of employment for which taxes were paid.  An October 1967 VA examination report states that he worked for a paving company as a laborer.  A March 1985 hospital admission note indicates the Veteran was injured while operating heavy machinery.  An April 1998 VA examination report states that he was a heavy equipment worker who had not worked for two years because of an industrial accident injuring his hands and wrists.  As noted, a February 2001 treatment note states that he was working as a professional driver.  His SSA records show that he had brief employment with an excavation company in 2003.  

His educational attainment is poor.  The Veteran's DD 214 indicates that he had education only through the 7th grade.  His claims file does not reflect utilization of VA educational benefits upon his separation from service.  This level of education demonstrates a lack of even basic educational qualifications.  

The Board finds that the evidence in favor of the claim is at least in equipoise.  His employment history shows he has not had sedentary employment, only manual labor.  His education is so poor that retraining away from manual labor is unlikely.  His occupation as a professional driver appears to be contraindicated by the nature of the increase in disability shown in 2006.  He began having radiating pain into his right leg, which would have the natural effect of impairing his ability to operate a vehicle safely.  The Board notes that, although the Veteran was not separately service-connected for radiculopathy at that time, pain, whether or not it radiates, is a part of the General Ratings Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).  Radiating pain is, therefore, a component of the service connected disability as of the date of claim.  The February 2012 medical opinion was in favor of finding the Veteran unable to obtain or maintain substantially gainful employment prior to June 16, 2008.  Resolving reasonable doubt in favor of the Veteran, the Board finds that, when taking the Veteran's employment history, educational and vocational history, and all other factors into account, the evidence is at least in equipoise that he was unable to obtain or maintain substantially gainful employment as of the filing of his claim.  As such, the Board finds that the evidence is at least in equipoise as of February 23, 2006.  Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted as of that date.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  An extraschedular TDIU is warranted as of February 23, 2006.  See 38 C.F.R. § 4.16(b).  

The Board finds that an increase in the lumbosacral disability was not factually ascertainable within the year prior to February 23, 2006.  See Harper, supra.  The Board concludes that the Veteran is not entitled to an effective date earlier than February 23, 2006, for the assignment of a TDIU on either schedular or extraschedular bases.  See 38 C.F.R. § 3.400; see also Harper, supra.  As such, the Board finds that the preponderance of the evidence is against the Veteran's earlier effective date claim prior to February 23, 2006.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied prior to February 23, 2006.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.






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ORDER

An effective date of February 23, 2006, but no earlier, for the assignment of an extraschedular TDIU is granted.




____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs