Citation Nr: 20006935 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 97-04 843 DATE: January 28, 2020 ORDER An earlier effective date of May 8, 2001 is granted for entitlement to TDIU. REMANDED Entitlement to the assignment of a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis, prior to May 8, 2001, is remanded. FINDING OF FACT The Veteran meets the schedular criteria for TDIU from May 8, 2001. His service-connected disabilities rendered him unable to follow a substantially gainful occupation throughout the period from May 8, 2001. CONCLUSION OF LAW The criteria for the award of the TDIU are met from May 8, 2001. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), (b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1956 to May 1975. In a November 2018 decision, the Board denied entitlement to an effective date prior to November 30, 2010 for a TDIU. The November 2018 decision also denied entitlement to a higher initial rating for asbestosis, rated as 10 percent disabling from October 16, 1995 to January 23, 2006; 30 percent disabling from January 24, 2006 to July 15, 2008; and 60 percent disabling from July 16, 2008 to January 4, 2015. The Veteran appealed the portion of the Board decision denying an earlier effective date for TDIU to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the part of the Board’s decision that denied entitlement to a higher initial rating for asbestosis. In July 2019, the Court granted a joint motion for partial remand, vacated the portion of the November 2018 decision that denied an earlier effective date prior to November 30, 2010 for the award of TDIU, and remanded the claim back to the Board for readjudication. Entitlement to an earlier effective date for TDIU The Veteran asserts that he is unemployable. The Veteran seeks a TDIU rating from 1999. In correspondence dated in December 2017, the Veteran’s attorney indicated that the Veteran has not been gainfully employed since 1999. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). The Veteran raised the issue of TDIU in conjunction with his appeal for a higher initial rating for service-connected asbestosis. The claim for asbestosis which led to a grant of service connection was received on October 16, 1995. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s service-connected disabilities include: asbestosis; diabetic renal disease; diabetes mellitus type 2 with bilateral diabetic retinopathy and erectile dysfunction; residuals of excision of the eleventh rib and scar right chest; and peripheral neuropathy of the right and left lower extremities. The Veteran has met the schedular percentage criteria of 4.16(a) since May 8, 2001. In June 2017, the Veteran submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The Veteran indicated that he was last employed as a car salesman from 1997 to 1999. The Veteran indicated that he has been unable to follow a substantially gainful occupation since 1999 due to his service-connected asbestosis, diabetes, neuropathy, and renal disease. By virtue of being part and parcel of the increased initial rating claim for asbestosis, the period on appeal for TDIU begins October 1995; however, the schedular criteria are only met from May 8, 2001. The RO granted entitlement to a TDIU from November 30, 2010, the date of correspondence from the Veteran’s representative which raised the issue of entitlement to a TDIU. A February 1989 letter from the U.S. Postal Service shows that the Veteran was found medically unsuitable for a position as a mail processor due to his history of lung problems. A September 2011 VA examination indicated that the Veteran’s restrictive lung condition would prevent him from engaging in any employment which required increased physical activity. The examiner opined that the Veteran could perform sedentary jobs or jobs requiring limited physical activity. Even though the examiner opined that the Veteran could perform sedentary work, the examiner noted that the Veteran remained home all day and performed limited physical work due to dyspnea. The examination report noted that the Veteran had been retired since 1998. July 2017 VA examinations reflect that the examiner opined that the Veteran’s diabetes mellitus, kidney disability, peripheral neuropathy, and respiratory disabilities did not impact his ability to work. The July 2017 examinations did not consider the September 2011 examination, the Veteran’s reported work history, or the other lay evidence regarding the Veteran’s functional impairments. In sum, the earliest claim for a TDIU was received on October 16, 1995. The most probative medical evidence establishes that the service-connected disabilities rendered him unable to perform a substantially gainful occupation since 1998 or 1999. The Board cannot award TDIU on an extraschedular basis in the first instance. Accordingly, entitlement to TDIU is granted from May 8, 2001, the date that he met the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). REASONS FOR REMAND The issue of an effective date prior to May 8, 2001 for TDIU on an extraschedular basis is remanded. The Veteran asserts that he has been unemployable due to his service-connected disabilities since 1999. The Veteran has met the schedular criteria for TDIU under 4.16 (a) since May 8, 2001. The Board is precluded from granting TDIU on an extraschedular basis in the first instance. Thus, the Board will refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Service. The matters are REMANDED for the following action: 1. The AOJ must refer the matter of entitlement to a TDIU to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU prior to May 8, 2001 under the provisions of 38 C.F.R. § 4.16 (b). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.