Citation Nr: 20021369 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-31 465 DATE: March 25, 2020 ORDER Entitlement to an effective date earlier than December 16, 2016 for the grant of a total rating based upon individual unemployability (TDIU) is denied. REMANDED Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction is remanded. FINDING OF FACT 1. The Veteran submitted his claim for entitlement to a TDIU on December 16, 2016, the same day he raised entitlement to a TDIU in conjunction with his lumbar spine increased rating claim. 2. The evidence establishing unemployability due to a service-connected disability is not dated and was not received until after receipt of the December 2016 claim. 3. During the year prior to receipt of the December 16, 2016 claim, the evidence dated or received into the record did not show that the Veteran filed a claim for TDIU, that entitlement to TDIU was raised by the Veteran or the record in conjunction with an increased rating claim, or that entitlement to TDIU was factually ascertainable. CONCLUSION OF LAW The criteria for an effective date earlier than December 16, 2016 for the grant of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to September 1975, July 1981 to November 1983, and from November 1987 to July 1994. 1. Entitlement to an effective date earlier than December 16, 2016 for the grant of entitlement to a total rating based upon individual unemployability (TDIU) Review of the record reveals that, on December 16, 2016, the Veteran filed a claim seeking an increased rating for his service-connected diabetes mellitus with erectile dysfunction and lumbar spine disabilities. See December 2016 VA 21-526b. On that date, he also sought to establish entitlement to a TDIU and, in support of that claim, filed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. See December 2016 VA Form 21-8940. In the April 2017 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) continued the 20 percent rating for service-connected diabetes mellitus but granted a higher, 40 percent rating for service-connected lumbar spine disability, effective December 16, 2016, the date of receipt of the Veteran’s increased rating claim. The AOJ also granted entitlement to a TDIU, effective December 16, 2016, which the AOJ noted was the date the Veteran met the schedular criteria for entitlement to a TDIU. See April 2017 Rating Decision. In this regard, total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). After the April 2017 rating decision, the Veteran timely appealed the denial of an increased rating for service-connected diabetes mellitus and the effective date assigned for the grant of a TDIU. He did not appeal initiate an appeal with respect to the rating assigned for his service-connected lumbar spine disability. With respect to the earlier effective date claim, the Veteran has asserted that an effective date earlier than February 16, 2016 is warranted for entitlement to a TDIU because the evidence shows he stopped working on a full-time basis on August 12, 2016. The Veteran’s attorney has argued that the Veteran should be afforded extra-schedular consideration and awarded entitlement to a TDIU from that date. See March 2018 Notice of Disagreement. A claim for a TDIU is considered a claim for an increase. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened 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 C.F.R. § 3.400. The date of an increased evaluation is the date of claim or the date entitlement arose (the date that the increase in shown or, in this case, the date that unemployability due to a service-connected disability is shown), whichever is later. If an increase in disability is shown in the year preceding the date of claim, the date of an increased evaluation will be the earliest date that it is factually ascertainable that the increase occurred. 38 C.F.R. § 3.400 (o)(1), (2). While a claim for TDIU can be filed via VA Form 21-8940, a claim for a TDIU may also be inferred in an increased rating claim where the Veteran asserts his disability affects his employability or such a claim is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran submitted his claim for entitlement to a TDIU, via VA 21-8940, on December 16, 2016, the same day he filed claims seeking an increased rating for his service-connected lumbar spine and diabetes mellitus disabilities. Therefore, an effective date earlier than December 16, 2016 for entitlement to a TDIU may be assigned only if, within one year prior to the December 2016 claim, (1) the Veteran filed a claim for entitlement to TDIU, (2) entitlement to a TDIU was raised by the Veteran or record in conjunction with an increased rating claim and there was evidence that the Veteran was unemployable due to his service-connected disabilities, or (3) it was factually ascertainable that he met the criteria for entitlement to a TDIU. The evidence does not show, nor has the Veteran alleged, that he filed a claim seeking entitlement to a TDIU via VA Form 21-8940 prior to December 16, 2016. However, the record reflects that, in June 2015, the Veteran filed a claim seeking an increased rating for his service-connected lumbar spine, right shoulder, and bilateral pes planus disabilities. In an October 2015 rating decision, the AOJ increased the rating for his service-connected bilateral pes planus disability but continued the 20 and 10 percent ratings assigned for his service-connected lumbar spine and right shoulder disabilities, respectively. The Veteran did not appeal the October 2015 rating decision but, during the one-year appeal period following the issuance of the rating decision, the Veteran sought treatment for his lumbar spine disability. See e.g., May 2016 VA treatment record. This evidence is considered new and material with respect to the severity of the lumbar spine disability and, because it was generated during the one-year appeal period following the October 2015 rating decision, it is considered as having been filed with the Veteran’s June 2015 increased rating claim. As such, the October 2015 rating decision did not become final with respect to the lumbar spine increased rating claim and was pending at the time the Veteran filed his December 2016 TDIU claim. See 38 C.F.R. § 3.156(b). While an increased rating claim for the lumbar spine disability was pending at the time of the December 2016 TDIU claim, the evidence dated and received during the year prior to that date does not show that entitlement to a TDIU was raised by the Veteran or the evidence submitted in conjunction with the increased rating claim. Indeed, the evidence does not show that the Veteran ever alleged or suggested that he was unable to work because of his service-connected lumbar spine, right shoulder, or bilateral pes planus disabilities when he filed the June 2015 increased rating claim or at any time during the pendency of the claim. See June 2015 VA Form 21-526b; September 2015 VA examination reports; VA treatment records received in July 2015. Similarly, the evidence submitted in conjunction with the increased rating claim did not raise entitlement to a TDIU. In this regard, the evidence dated and received into the record during the year prior to the December 2016 TDIU claim consists solely of VA treatment records dated from December 2015 to December 2016, which document the Veteran’s various complaints and treatment for several disabilities, including his service-connected bilateral foot and lumbar spine disabilities. The records document general reports of right foot pain. A May 2016 VA treatment record shows the Veteran endorsed having right lower back pain, which he stated occurred primarily when getting up from bed and improved after walking, while objective evaluation of the lumbar spine revealed mild tenderness over the right paraspinal muscles and normal range of motion. Notably, the VA treatment records do not show, indicate, or otherwise suggest that the Veteran was unemployable, to include as a result of his service-connected disabilities. In fact, the VA treatment records only refer to the Veteran’s job in June 2016 when he sought treatment for numbness in his fingers, which he stated occurred when operating a forklift. The Veteran was diagnosed with bilateral carpal tunnel syndrome and ulnar neuropathy at that time, but clinicians noted he was able to return to work without any limitations if wearing splints on both wrists and, notably, the Veteran never reported having difficulty performing his duties at work. See June 2016 VA treatment record. The Board notes that service connection has not been established for carpal tunnel syndrome or ulnar neuropathy affecting the bilateral wrist. Moreover, the evidence does not indicate or suggest that the Veteran was unable to secure or maintain substantially gainful employment at that time, to include as a result of his any of his service-connected disabilities. Therefore, entitlement to a TDIU was not raised by the record or the Veteran in conjunction with the increased rating claim filed in June 2015. Finally, the Board must consider whether the evidence dated in the year prior to the December 2016 claim establishes entitlement to a TDIU. In other words, the Board must determine when entitlement to a TDIU arose or was first factually ascertainable. The Veteran’s service-connected disabilities are as follows: effective from June 15, 2004, low back strain with degenerative disc disease L3, L4, L5, rated 20 percent disabling; diabetes mellitus with erectile dysfunction, rated 20 percent disabling; right shoulder degenerative disc disease and calcific tendonitis, 10 percent disabling; and cortical cataracts, rated noncompensable (zero percent disabling). Effective July 13, 2011, peripheral neuropathy affecting the left and right lower extremities is separately rated 10 percent disabling. Effective June 26, 2015, bilateral pes planus with bilateral plantar fasciitis and metatarsalgia is rated 30 percent disabling. Effective December 16, 2016, the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis and metatarsalgia is rated 30 percent disabling. Accordingly, the Veteran has met the schedular criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a) since December 16, 2016, but no earlier, as that is the earliest date that he had one service-connected disability rated 40 percent, with additional disabilities bringing his combined rating to 70 percent or more. In this context, the Board notes that the Veteran’s increased rating claim for diabetes mellitus with erectile dysfunction is being remanded in this decision and that he could theoretically be awarded a rating in excess of 20 percent prior to (but no earlier than) December 16, 2016. Nevertheless, the Board notes that the outcome of the increased rating claim will not have any bearing on the Veteran’s entitlement to a TDIU prior to December 16, 2016 because the relevant evidence does not show that his diabetes mellitus has ever had any impact on his employability. Specifically, the March 2017 VA Diabetes examination reflects that, even when considering the treatment required to manage his diabetes and the symptoms associated with his erectile dysfunction, neither the Veteran’s diabetes nor erectile dysfunction have had an impact on his ability to work. See March 2017 VA examinations. Additionally, as noted, the evidence dated and received during the one year period prior to receipt of the December 2016 claim, which included the increased rating claim for diabetes, does not show, indicate, or otherwise suggest that the Veteran was unemployable, to include as a result of his diabetes. See VA treatment records dated December 2015 to December 2016. In this regard, the Board further notes that the Veteran’s entitlement to a TDIU is based upon the impairment caused by his service-connected lumbar spine disability. On his claim for a TDIU, the Veteran did not specify the service-connected disabilities that prevented him from securing or following any substantially gainful occupation but, in a written statement submitted with the claim form, the Veteran reported that his back had been hurting more over the previous year, particularly when bending and standing up. See March 2017 Veteran statement. Subsequent medical evidence confirmed that the Veteran’s lumbar spine disability impacted his ability to work, as he could not walk, stand, or sit for long periods of time or lift heavy objects. See March 2017 VA Back examination. Notably, the relevant evidence did not indicate that any of the Veteran’s other service-connected disabilities prevented him from securing or maintaining employment. Therefore, even if a rating in excess of 20 percent is assigned for service-connected diabetes mellitus prior to December 16, 2016, the evidence does not establish that his service-connected lumbar spine or other disabilities prevented substantially gainful employment during the year prior to the December 2016 claim. In fact, the medical evidence supporting the TDIU claim and, thus, establishing when entitlement to a TDIU arose, was not dated or received until after the December 2016 claim. Therefore, the Board finds that the evidence dated in the year prior to the December 2016 claim did not establish entitlement to a TDIU. As a result of the foregoing, the Board may proceed to evaluate the Veteran’s entitlement to an earlier effective date for the grant of a TDIU while the increased rating claim for diabetes mellitus is in remand status. As noted, the Veteran’s attorney has argued that the Veteran should be afforded extra-schedular consideration of entitlement to a TDIU prior to December 16, 2016 because he stopped full-time employment in August 2016. See March 2018 Notice of Disagreement. The law provides that, in all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), rating boards should submit to the case to the Director of Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). At the outset, the Board notes that the attorney’s argument acknowledges that the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to December 16, 2016. However, as discussed above, even if the Veteran met the percentage standards set forth in 38 C.F.R. § 4.16(a) prior to December 2016, the evidence dated and associated with the claims file during the year prior to the claim does not show or suggest that the Veteran was unemployable because of his service-connected disabilities at that time. In this regard, the Board finds particularly probative that information from the Veteran’s employer shows that the Veteran’s employment ended because he was laid off and that, during the 12 months preceding his last day of employment, he did not lose any time due to a disability and was not given any concessions because of his age or disability. See February 2017 VA Form 21-4192. This evidence supports a finding that the Veteran’s employment was not impacted or terminated because of his service-connected lumbar spine disability and there is no other evidence of record that shows that, when he stopped working in August 2016, he was not capable of performing the physical and mental acts required for employment because of a service-connected disability. Therefore, referral to the Director of Compensation Service for extraschedular consideration of entitlement to a TDIU prior to December 16, 2016 is not merited. In summary, the evidence shows that the Veteran submitted his claim for entitlement to a TDIU on December 16, 2016, the same day he raised entitlement to a TDIU in conjunction with his lumbar spine increased rating claim. The evidence also shows that unemployability due to a service-connected disability was not shown until after receipt of the December 2016 claim. Furthermore, the evidence dated or received into the record within the year prior to the December 2016 claim does not show that the Veteran filed a claim for TDIU, that entitlement to TDIU was raised by the Veteran or the record in conjunction with an increased rating claim, or that entitlement to TDIU was factually ascertainable. Therefore, for the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the assignment of an effective date earlier than December 16, 2016 for entitlement to a TDIU. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II, with erectile dysfunction is remanded. The August 2019 statement of the case (SOC) reflects that the Agency of Original Jurisdiction (AOJ) considered VA treatment records dated from December 2015 to August 2019 in readjudicating this appeal. The claims file contains VA treatment records dated from December 2015 to March 2017. The record also reflects that, in August 2019, the AOJ attempted to obtain all of the VA treatment records that were used in the August 2019 SOC but only records dated from March to August 2019 were added to the record at that time, as it appears that all of the records did not download. As such, VA treatment records dated from March 2017 to March 2019 are not of record and, as a result, the Board is unable to render a fully informed decision with respect to this issue. Indeed, the Board is unable to determine when the Veteran was prescribed insulin for his diabetes mellitus disability and if management of his disability has ever required regulation of activities. Therefore, a remand is necessary to obtain all relevant, outstanding VA treatment records. The Board notes that the outstanding VA treatment records identified above are not needed in order to adjudicate the earlier effective date claim decided herein, as the time period in question involves the period prior to December 16, 2016 and records from that period are already associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, including those dated from March 2017 to March 2019 and from August 2019 to the present. 2. Once the above request has been completed, readjudicate the appeal. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, Counsel 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.