Citation Nr: 18153437 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 08-06 550A DATE: November 27, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 11, 2009 is denied. FINDING OF FACT The preponderance of the evidence demonstrates that, prior to June 11, 2009, the Veteran was not unable to secure and follow a substantially gainful occupation as the result of service-connected disability. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to June 11, 2009 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from August 1977 to June 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Board granted a TDIU effective July 30, 2010. The Board remanded the issue of whether a TDIU was warranted prior to that date. In a subsequent July 2017 decision, the Board granted the TDIU effective June 11, 2009. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a May 2018 joint motion for partial remand (JMPR) filed by the parties to his matter, the Court vacated the decision in June 2018. The issue is again before the Board for appellate review. 1. Entitlement to TDIU prior to June 11, 2009 is denied. The Veteran claimed entitlement to a TDIU in April 2009. A TDIU has been in effect since June 11, 2009. The Veteran asserts entitlement to an earlier effective date for the TDIU. Law and Regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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 C.F.R. §§ 3.340, 4.16(a). Nevertheless, 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 disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). An exception to this rule exists under 38 C.F.R. § 3.400(o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim for increased rating where evidence indicates an increase in disability during that time period. Background The Veteran first met the schedular criteria for TDIU on July 30, 2010, at which point he had a combined rating of 70 percent with several related disabilities combined and rated as at least 40 percent disabling. See 38 C.F.R. §§ 4.16(a), 4.25. An extraschedular rating for TDIU has been applied for the period from June 11, 2009 to July 30, 2010. See 38 C.F.R. § 4.16(b). The claim for an earlier effective date is based on the assertion that residuals from 1985 inguinal hernia repair have rendered the Veteran unemployable since service discharge in June 1986. The Veteran was medically discharged from service in June 1986 due to residuals from inguinal hernia repair. The RO granted service connection for these residuals in an unappealed February 1998 rating decision which assigned a 0 percent rating effective the day following discharge from service. In a November 1998 rating decision, the RO increased the assigned rating to 10 percent for symptoms related to nerve entrapment. In December 1999, the RO found an effective date in January 1990 warranted for the increase in rating. In January 2000, the Veteran appealed the assigned rating to the Board, but then withdrew the issue in an August 2001 personal hearing before the RO. On October 12, 2007, he filed a claim for increased rating for this disorder, which the RO denied in an August 2008 rating decision he appealed to the Board in March 2009. That claim remained in appellate status on June 11, 2009, the effective date of the TDIU assignment. Analysis Certain evidence suggests that residuals of the inguinal hernia repair may have caused unemployability since service discharge, and therefore since the October 2007 increased rating claim. As such, the question before the Board is whether a TDIU had been warranted at any time between October 12, 2006 – one year prior to the claim for increased rating for residuals of inguinal hernia repair – and June 11, 2009, the effective date of the assignment of the TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim); see also 38 C.F.R. § 3.400(o)(2). The supportive evidence consists of lay and medical evidence. In various statements of record dated since October 2007 the Veteran has asserted that the residuals of inguinal hernia repair have prevented him from working since 1986. He asserted this most recently in October 2018, and attached a statement from November 1986 in which he asserted the same. His assertions are supported by other lay evidence and by a private medical opinion dated in June 1999. In a statement dated in July 2018, the Veteran’s friend stated that she has known the Veteran since the late 1970s, and remembered him always using a cane due to residuals of the surgery. In the June 1999 medical statement, the physician indicated that the Veteran was unable to gain meaningful employment because of persistent chronic pain he endures due to his ilioinguinal nerve entrapment disability. The preponderance of the evidence indicates, however, that inguinal disability did not render the Veteran unemployable prior to June 11, 2009. Medical evidence from the Social Security Administration (SSA) notes disability payments since the early 1990s based on an anxiety disorder. Medical evidence from SSA and from private and VA providers does not show any surgical procedures, inpatient treatment, or intensive outpatient treatment for inguinal disability prior to June 11, 2009. Information from the Veteran’s last employer shows that he worked from February 2001 to April 2002 for 15-25 hours weekly and quit this job voluntarily. The employer did not indicate that he was terminated or missed any work due to disability. The Veteran reported to the employer that he stopped working due to anxiety. It is clear that the inguinal disorder hindered the Veteran prior to June 2009. For this reason, he was compensated for its effect on his ability to work – the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. But the evidence does not indicate that the disorder prevented him from securing and following a gainful occupation. Rather, the evidence indicates that any unemployability prior to June 2009 was due to psychiatric disability, which had not been service connected prior to June 2009. Inasmuch as individual unemployability must be determined without regard to nonservice-connected disability, the psychiatric disability prior to June 2009 cannot form the basis for an earlier effective date here – a TDIU cannot be assigned prior to June 2009 based on psychiatric disability that was nonservice connected prior to June 2009. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The Board has considered whether other disability service connected prior to June 2009 rendered the Veteran unable to secure and follow substantially gainful employment, and whether a TDIU could be applied earlier based on such disability. Between October 2006 and June 2009, the Veteran was service connected for lower back disability rated as 20 percent disabling from October 12, 2007, left knee disability rated as 10 percent disabling from August 1999, costochondritis rated as 10 percent disabling from December 2003 and, rated as 0 percent disabling, an inguinal scar effective April 2009 and hemorrhoids effective January 1990. The Board further notes that an increased rating claim for costochondritis was in appellate status from the mid 2000s. Specifically, the Veteran appealed to the Board a January 2005 rating decision denying a compensable rating for costochondritis. The RO later granted an increased rating for this claim which the Veteran appealed. As such, an appeal stream exists for this claim on which a Rice TDIU could be based prior to June 2009. However, there is no evidence of record indicating that either costochondritis or the other disabilities service connected prior to June 2009 rendered the Veteran unemployable. The JMPR indicates that a March 2009 VA examination report regarding the Veteran’s back strengthened the claim for a TDIU prior to June 2009. The JMPR implied that the report indicated that back disability led to unemployability. However, the report does not indicate this. After noting the Veteran’s report that he had not worked since retirement in 1986 due to the residuals of the inguinal hernia repair, the report states, “effect on usual occupation - not employed.” This does not indicate that back disability caused unemployment. Rather, it simply states that the effect of back disability on employment could not be determined because the Veteran was not then employed. This interpretation is corroborated by findings regarding activities of daily living. The examiner found that back disability caused moderate impairment on exercise, shopping, and chores, mild impairment on traveling, and no impairment on sports, recreation, feeding, bathing, dressing, toileting, and grooming. So, this report is not evidence that supports the notion that an extraschedular TDIU was warranted prior to June 11, 2009. Furthermore, a claim regarding back disability has never been on appeal before the Board. In an August 2008 rating decision, the RO denied an October 2007 original service connection claim for back disability. The Veteran filed a notice of disagreement in November 2008. In March 2009, the RO granted the claim, finding degenerative changes in the thoracolumbar spine due to an in-service injury. The Veteran did not file a notice of disagreement with the assigned rating or assigned effective date. As such, an appeal stream regarding service-connected back disability, on which a Rice TDIU could be based prior to June 2009, does not exist. The Veteran has provided lay evidence connecting back disability to nerve entrapment from inguinal hernia repair. Insofar as back disability may be secondary to, or intertwined with, residuals of inguinal hernia repair, symptomatology related to back disability since October 2006 would not form the basis for an earlier effective date for an extraschedular TDIU for the reasons stated earlier – the evidence shows that psychiatric disability, not residuals of inguinal hernia to include symptomatology in the back related to nerve entrapment, led to unemployability prior to June 2009. In sum, the preponderance of the evidence is against the assignment of a TDIU prior to June 11, 2009. As such, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) and Alemany v. Brown, 9 Vet. App. 518 (1996). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel