Citation Nr: 18129348 Decision Date: 08/28/18 Archive Date: 08/24/18 DOCKET NO. 15-35 195 DATE: August 28, 2018 ORDER Entitlement to an effective date of July 29, 2008, for the grant of a total disability rating due to individual unemployability (TDIU) is granted. FINDING OF FACT Effective July 29, 2008, the Veteran’s cervical and lumbar disabilities precluded gainful employment. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date than July 30, 2010 for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.157, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1974 to March 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an earlier effective date than July 30, 2010 for the grant of individual unemployability The effective date for an award of an increased rating (including TDIU) will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to the receipt of the claim, the increase will be effective on the date of the claim. In addition, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2), VAOPGCPREC 12-98 (1998). For purposes of effective date rules, the issue of entitlement to a TDIU may be considered as part of a claim for underlying benefits (i.e., the service connection claim) or may be considered part of an increased compensation claim (i.e., in conjunction with an increased evaluation claim or as a freestanding claim to obtain an increased evaluation based on unemployability). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (stating that a claim for individual unemployability benefits “involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a total disability rating based on individual unemployability is based has already been found to be service connected, as part of a claim for increased compensation”); see also Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (noting that an award of individual unemployability may not amount to award of increased compensation where individual unemployability is awarded as part of initial award of disability compensation benefits). In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran was in receipt of a 20 percent combined disability rating for his cervical and lumbar disabilities from July 29, 2008 to July 30, 2010, from which date he is in receipt of a total disability rating due to individual unemployability. He avers that his cervical and lumbar disabilities precluded gainful employment from the earlier date. The record shows that the Veteran’s TDIU claim was raised in the context of his claim for original service connection claims for his cervical and lumbar disabilities and in statements advanced at his September 2008 VA examination, where his capacity for gainful employment was considered and addressed by the examiner. The Board concedes that the Veteran’s total disability rating did not rise to the level contemplated by 38 C.F.R. § 4.16(a) until July 2010. However, the following section, 4.16(b), explicitly provides that all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran “was ineligible for 4.16(b)-TDIU consideration.” Id. However, the Board finds that Bowling and Floyd’s prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court’s decisions in Thun and Anderson, as well as the Federal Circuit’s affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at 6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, “[i]n sum, the Secretary’s contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected.” Id. at 5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that “Although it is not clear how the Secretary’s approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.”) Id. at 5 fn 4 (emphasis added). Therefore, given the Board’s reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) (“There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year.”); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand “perpetuates the hamster-wheel reputation of veterans law”). The Board will consequently consider whether a TDIU is warranted for the entire period on appeal. The record shows the Veteran obtained a high school diploma, with no additional education, and worked on a full-time basis until July 2008, when he left his employment as a manager at a base commissary due to his back problems. The Veteran has not worked since that time. At his September 2008 VA examination in connection with his service connection claims, the VA examiner opined that the Veteran’s cervical and lumbar symptoms were sufficiently severe as to preclude gainful employment. The Board notes also that the Veteran has been in receipt of Social Security Disability benefits since July 2008, a fact which while not dispositive, as Social Security laws and regulations differ from VA’s, lends further support to the Veteran’s argument that his back problems have precluded gainful employment since the earlier date. Based on the foregoing, the Board finds that an earlier effective date of July 29, 2008 is warranted for assignment of a total disability rating due to individual unemployability. In so finding, the Board accepts the assessment of the September 2008 VA examiner as the most probative evidence of record on the question of the Veteran’s capacity for employment in light of his back disabilities. The Board has considered the Veteran’s level of education as well as his functional capacity in determining that no type of employment would appear to be appropriate for him. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Accordingly, an effective date of July 29, 2008 is granted for the Veteran’s award of entitlement to a TDIU. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs