Citation Nr: 18146841 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-25 882 DATE: November 1, 2018 REMANDED Entitlement to an effective date earlier than July 21, 2009 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran, who served on active duty in the Army from August 1972 to August 1975, contends that he is unable to work due to his service-connected disabilities. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): “It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.” Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In the case at hand, the Veteran is presently service-connected for schizophrenia, rated as 30 percent disabling; acne keloids of the scalp, face, and neck, rated as 30 percent disabling; and acne keloids of the back, chest, and upper arms, rated as 30 percent disabling. His combined rating is 70 percent from July 21, 2009. The Veteran did not meet the criteria for consideration for entitlement to TDIU on a schedular basis prior to that date because his combined rating did not satisfy the percentage requirements. In evaluating the Veteran’s claim for an effective date earlier than July 21, 2009 for the award of TDIU, the Board must first address the question as to when the Veteran effectively filed his claim of entitlement to TDIU. Procedurally, the Veteran appealed to the Board a May 2010 rating decision which increased the disability rating for acne keloids, and denied entitlement to TDIU. He also appealed to the Board the claim for an initial rating greater than 30 percent for schizophrenia extending to September 20, 2001. At that time, the record included a VA Form 8940 (Veteran’s Application for Increased Compensation Based on Individual Unemployability) received in May 2004 which identified acne and depression as disabilities preventing employability since 1986. Thus, the issue of entitlement to TDIU was reasonably raised as part of the initial rating claim for schizophrenia filed in September 2001. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that the issue of TDIU is part and parcel to a higher evaluation claim when the Veteran or the record reasonably raises the question of unemployability due to the disability for which the higher evaluation is sought). A June 2013 rating decision awarded TDIU effective July 21, 2009. It is presumed that the Veteran was seeking the maximum benefit allowed by law and regulation for that disability, and “it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.” AB v. Brown, 6 Vet. App. 35, 38 (1993). However, the AOJ notified the Veteran that “[t]he grant of entitlement to individual unemployability is considered a full grant of the benefit sought in your notice of disagreement. Thus, your notice of disagreement has been closed.” The August 2010 notice of disagreement did not clearly limit the appeal to the effective date of July 21, 2009. Rather, the Veteran’s attorney argued that the Veteran had claimed unemployability due to service-connected disability back to 1986. Thus, pursuant to Rice, the issue of entitlement to TDIU for the time period prior to July 21, 2009 remained on appeal as part of the initial rating claim for schizophrenia per AB. On July 25, 2013, the Veteran filed simultaneous statements withdrawing his increased rating claims for acne and schizophrenia (as well as a claim for an earlier effective date of award for schizophrenia) but specifically submitting a notice of disagreement with the effective date of award assigned for TDIU. A February 2015 Board decision withdrew all pending claims except for TDIU, which was remanded for issuance of a statement of the case on the issue of entitlement to an effective date earlier than July 21, 2009 for the award of TDIU. On re-review of this record, the Board finds that, per Rice, the issue of entitlement to an effective date earlier than July 21, 2009 for the award of TDIU had been pending before the Board in 2015, and that the potential effective date of award may extend to the initial rating period for schizophrenia effective September 20, 2001. For the time period prior to July 21, 2009 and potentially extending to September 20, 2001, the Veteran may be entitled to an earlier effective date for TDIU on an extraschedular basis if it is established that he was unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities prior to that date, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of an earlier effective date for TDIU. 38 C.F.R. § 4.16(b). Neither the AOJ nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the Veteran asserts that his service-connected schizophrenia and skin condition have prevented him from maintaining employment since 1986. The Veteran, who completed two years of college, has submitted several separate VA 21-8940 forms containing conflicting details regarding his last employment. His first TDIU application submitted in April 1997 reflects that the most he made in one year was $1400.00 in 1984 when he was a tool maker. Another submitted in May 2004 indicates the most was $10,000.00 in one year when he worked at the YMCA in 1982. His most recent application that was added to the record in August 2009 did not provide information regarding his highest level of income. A December 2001 VA treatment entry regarding his psychosis notes that “patient is not able to hold a job and has lost several jobs…patient has a psychotic disorder which is preventing him from holding a job and he needs to be considered for some disability because of him not being able to work” In January 2002, the Veteran filed correspondence that indicated he could not hold a job given the severity of his schizophrenia. He reported hearing voices telling him to kill people. Another letter referenced his inability to get a job suitable for his qualifications because his skin disorder caused bad body odor and bad breath. A treatment note also from January 2002 stated “his adjustment difficulties and chronic psychiatric problems appeared to be significant obstacles to his success…and would also seem likely to pose further problems for him re[garding] possible employment.” In September 2003, the Veteran’s psychologist Dr. M.R. noted in an evaluation letter that the Veteran “remains very vulnerable to stress and is easily overwhelmed (with periods of frustration, anger, and inappropriate social behavior), with these problems posing significant problems for him with respect to any career planning,” and appeared to link these feelings to his schizophrenia. He went on to conclude that “with his psychiatric condition, [he] appears unable to maintain any steady, stable employment.” Based on the evidence of record, including the fact that the Veteran has remained unemployed since 1986, his limited educational and vocational background involving laborious occupations, and the opinions of the physicians and Veteran’s psychologist, the Board finds that a referral to the Director, Compensation Services, for a determination of entitlement to an earlier effective date for the award of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) is warranted. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any records cannot be obtained, notify the Veteran and his attorney of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Refer the Veteran’s claim for TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities precluded him from participating in gainful employment consistent with educational and occupational background prior to July 21, 2009. The Director, Compensation Service should be advised that the claim of entitlement to TDIU is deemed to have been filed on September 20, 2001. (continued on next page) 3. After completion of the above, readjudicate entitlement to an earlier effective date for the grant of TDIU considering all relevant evidence. If any the benefit sought is not granted in full, the Veteran and his attorney should be furnished an appropriate supplement statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel