Citation Nr: 1310155 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-44 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to total disability rating for compensation purposes based on individual unemployability due to a service-connected disability (TDIU) prior to July 3, 2007 to include consideration of TDIU on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to July 1994. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision dated in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In May 2011, the Veteran presented testimony before the undersigned in a travel board hearing at the RO. A copy of the transcript has been associated with the claims folder. The issues of entitlement to dental care, an acquired psychiatric disorder, and hypertension have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that the effective date of the grant of TDIU should be from the date he first filed a claim for TDIU in 2003. The Board notes that the Veteran was denied entitlement to TDIU in a May 2004 decision and did not appeal that decision. Although the Veteran has claimed he never received notification that his appeal was denied because he had moved, notice of the decision was mailed to his address of record in June 2004, and a change of address was not received by the RO until August 2004. The Board finds the May 2004 decision is final. In November 2005, the Veteran filed another claim for entitlement to TDIU. In April 2007, the RO again denied the Veteran's claim for TDIU. However, within one year of the April 2007 denial, the Veteran submitted additional medical evidence along with a claim for entitlement to TIDU in June 2007. The Board finds his June 2007 claim for TDIU is a notice of disagreement with the April 2007 RO decision. The Board notes that earliest possible date to grant entitlement to TDIU is November 2005, the date of that reopened claim for TDIU. After careful review of the claims file and despite the development already undertaken, the Board concludes that a remand of the claim is required for additional development prior to adjudication. The Board notes that the effective date of the award of an increase in compensation is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A claim for TDIU is a claim for increased compensation if, as in this case, the 'disability upon which entitlement to TDIU is based has already been found to be service connected.' Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Accordingly, the assignment of an effective date is controlled by the criteria for assigning the effective date for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). TDIU 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 service-connected disabilities: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). 38 C.F.R. § 4.16(a) further provides that disabilities resulting from a common etiology or single accident will be considered one disability. If the required percentage requirements are not met, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the Director of the VA Compensation and Pension Service (C&P) should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board cannot award TDIU on this basis in the first instance. In this case, the Veteran did not meet the percentage requirements for TDIU prior to July 3, 2007, but did meet the criteria thereafter. Prior to July 3, 2007, the Veteran was service connected for degenerative disc disease of the cervical spine at 30 percent disabled (with a period of total temporary disability from June 2, 2006 to August 2, 2006), tinnitus at 10 percent disabling, left ankle arthritis at 10 percent disabling, paresthesia right elbow at 10 percent disabling, and noncompensable evaluations for hearing loss, right fifth finger injury, right fifth toe injury, and post-surgical right elbow cyst. The combined rating was 50 percent prior to July 3, 2007. Though the RO stated there was not enough evidence to consider whether Veteran was eligible for TDIU extraschedular consideration prior to July 3, 2007, the Board disagrees. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court held that where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the C&P Director. In the instant case, the Board finds that there is plausible though potentially contradictory evidence that prior to July 3, 2007 the Veteran was unable to secure and follow a substantially gainful occupation based on service-connected disabilities. In a May 2003 letter, M. M., M.D., stated that he encouraged the Veteran to seek disability as his medical conditions are making ongoing employment increasingly more difficult. The physician noted that Veteran's principal medical problems are musculoskeletal, including chronic neck and back pain. A recent MRI of the cervical spine documented severe neural foraminal stenosis at the C5-C6 level. The physician stated that the Veteran has worked even under physical duress; however, he was concerned that by continuing to work in his present capacity, he may be accelerating damage and aggravating symptoms. A Social Security Administration disability determination found the Veteran unemployable due to a primary diagnosis of osteoarthrosis and allied disorders, with a secondary diagnosis of hypertensive vascular disease. During an April 2006 VA examination, the Veteran complained of difficulty with activities of daily living due to severe pain. In a July 2007 letter, K. H., MSN, ARNP, reported that the Veteran has a history of cervical spine compression fracture, and has complained of persistent disabling chronic neck and back pain as well as headaches. He has a number of other medical disorders. The nurse stated that he believes that the Veteran cannot be gainfully employed due to his medical conditions. A February 2008 employer statement indicates the Veteran was given disability retirement in 2003. In light of the foregoing and affording the Veteran the benefit of the doubt, the Board concludes that the case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the VA's Director of Compensation and Pension. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran of the requirements for TDIU extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b), and permit the Veteran an opportunity to supplement the record as desired. Any additional development should be undertaken as necessary. 2. Following the completion of all of the above development, the AOJ should arrange for the Veteran to undergo a social and industrial survey to ascertain if his service-connected disabilities alone preclude him from securing and maintaining substantially gainful employment in light of his work history and level of education. The Veteran's claims file must be made available to the examiner and reviewed in connection with the examination. It is imperative for the social and industrial survey examiner to understand that although the record reflects that the Veteran's neck disability plays a significant role in his current unemployed status, the focus of the inquiry is not on why he is currently unemployed, but rather it is on whether or not his service-connected disabilities alone would preclude substantially gainful employment in light of his education and work history. 3. If the claim remains denied, then refer the claim of entitlement to TDIU prior to July 3, 2007 to the C&P Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The claims file and a copy of this remand should be provided to the Director of Compensation and Pension. 4. Thereafter, the issue of an effective date earlier than July 3, 2007 for the grant of TDIU pursuant to 38 C.F.R. § 4.16(b) should be readjudicated. If the full benefit sought on appeal is not granted, a supplemental statement of the case (SSOC) should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).