Citation Nr: 1632299 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 13-06 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to July 26, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied entitlement to a TDIU. The Veteran disagreed with the denial of his claim. In a December 2011 rating decision, entitlement to a TDIU was granted effective July 26, 2010. The Veteran disagreed with the effective date assigned. The Veteran testified at a video conference hearing before the Board in June 2016. FINDING OF FACT Since December 28, 2007, the evidence of record demonstrates that the Veteran's service-connected disabilities were so severe as to prevent him from engaging in substantially gainful employment consistent with his level of education and occupational experience. CONCLUSION OF LAW Since December 28, 2007, criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION For historical purposes, the Veteran submitted VA Form 21-8940 which was received on December 28, 2007. In a February 2009 rating, the Veteran was denied entitlement to a TDIU. The Veteran disagreed with the denial of his claim. In a December 2011 rating decision, entitlement to a TDIU was granted effective July 26, 2010. The Veteran disagreed with the effective date assigned. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his educational level and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(o) (2015). The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. 38 U.S.C.A. §5110(b)(2) (West 2014). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date is the date of receipt of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. Harper v. Brown, 19 Vet. App. 125 (1997). A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 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, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). 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). 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). 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). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities, nor advancing age, may be considered. Prior to July 26, 2010, service connection was in effect for cardiomyopathy, evaluated as 30 percent disabling; diabetes mellitus, type II with erectile dysfunction evaluated as 20 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The combined schedular evaluation was 60 percent. Effective July 26, 2010, 20 percent ratings were awarded for peripheral neuropathy of the left and right lower extremities. The combined schedular evaluation was 70 percent. The Veteran maintains that he warrants entitlement to a TDIU prior to July 26, 2010, because his heart disability in conjunction with his other service-connected disabilities rendered him incapable of substantially gainful employment during the entire relevant appeal period. An April 1998 decision from the Social Security Administration (SSA) reveals that the Veteran was found to be disabled due to severe septal and left ventricular cardiac hypertrophy without obstruction effective July 31, 1997. On the VA Form 21-8940 received on December 28, 2007, the Veteran indicated that his service-connected cardiomyopathy prevented him from securing or following any substantially gainful employment. He indicated that he last worked in September 1996 as a welder. He reported that he completed four years of high school. Associated with the claims file is a statement from M. Miller, M.D., dated in March 2010 which indicates that the Veteran stopped working twelve years prior to the date of the letter due to his heart disability. As an initial matter, the Board notes that for the period prior to July 26, 2010, the Veteran did not meet the schedular criteria for a TDIU. Generally, while the TDIU claim would be submitted to the Director of Compensation and Pension service for consideration of TDIU on an extraschedular basis, see 38 C.F.R. § 4.16(b), in this case it is clear that the Veteran's service-connected disabilities, specifically his heart disability together with his other service-connected disabilities, precluded him from obtaining and maintaining substantially gainful employment, consistent with his education and past occupational experience since December 28, 2010. The Veteran is not prejudiced by the Board's grant of an earlier effective date for the award of TDIU. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). During the entire appeal period, the Veteran's heart disability was found to preclude his employment by the SSA. Additionally, the medical evidence associated with the claims file indicates that the Veteran's heart disability precluded his employment. Prior to July 26, 2010, the Veteran's peripheral neuropathy of the left lower extremity was rated as 10 percent disabling and peripheral neuropathy of the right lower extremity was rated as 10 percent disabling. The ratings assigned for the left and right lower extremity peripheral neuropathy were each increased to 20 percent effective July 26, 2010. While the schedular rating for a TDIU was not met prior to the 20 percent ratings assigned for left and right peripheral neuropathy effective July 26, 2010, it is clear that the Veteran's service-connected heart disability in conjunction with his other service-connected disabilities precluded employment prior to that date. As noted, the Veteran filed a VA Form 21-8940 which was received on December 28, 2007. There were no increased rating claims pending at that time nor was there any evidence indicating that any increased ratings were warranted for any of the Veteran's service-connected disabilities prior to December 28, 2007. As such, the earliest effective date for the award of a TDIU is December 28, 2007, the date his claim for a TDIU was received. See 3.400(o). In sum, the Veteran's service connected disabilities prevented him from securing or following substantially gainful employment since December 28, 2007. ORDER Entitlement to a TDIU effective December 28, 2007, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs