Citation Nr: 20030137 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 12-16 662A DATE: April 29, 2020 ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is granted from March 1, 2015. REMANDED Entitlement to a TDIU, to include on an extraschedular basis, from February 6, 2008, to September 29, 2009, is remanded. FINDING OF FACT The most probative evidence reaches the level of equipoise as to whether the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities from March 1, 2015. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU are met from March 1, 2015. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.340, 3.341, 3.400 (o); 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1963 to April 1966, including in the Republic of Vietnam, and had additional service in the National Guard and Reserves. The Board thanks him for his military service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. The Veteran filed an informal claim for an increased rating for posttraumatic stress disorder (PTSD) in April 2010. The matter was appealed to the Board, which issued an August 2017 decision finding, among other things, that entitlement to a TDIU prior to July 26, 2016, had not been raised by the record as part and parcel of the underlying increased rating claim for PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed that the Board had erred in failing to provide an adequate statement of reasons and bases for its conclusion that a TDIU had not been raised by the record. In January 2019, the Board denied entitlement to a TDIU prior to July 26, 2016. It determined that the issue of a TDIU had been raised by the record, but that the only issue before the Board was whether the Veteran was unable to secure and follow substantially gainful employment due to his PTSD prior to July 26, 2016. The Veteran appealed the January 2019 Board decision. In October 2019, the Court granted a Joint Motion for Remand in which the parties agreed that the Board erred when it limited its consideration of TDIU to the symptoms of PTSD and did not consider whether the Veteran’s other service-connected disabilities, either jointly or separately, impaired his ability to obtain or maintain substantially gainful employment. The parties noted that the June 2018 JMPR had not limited consideration of the issue to functional impairment posed by PTSD, but requested consideration of entitlement based on the Veteran’s physical and psychiatric disabilities. The matter has now returned to the Board for review. Thus, the question for the Board is whether a TDIU may be granted prior to July 26, 2016, based on consideration of all the Veteran’s service-connected conditions. A TDIU may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. As of March 2018, the Veteran’s service-connected disabilities consisted of PTSD, rated as 50 percent disabling from March 31, 2000, and 70 percent from July 26, 2016; prostate cancer, rated as 100 percent disabling from September 30, 2009, 20 percent from March 1, 2015, and 60 percent from October 26, 2015; disability of peroneal and fibulocalcaneal ligaments and sub-talar joint of the left ankle, rated as 20 percent disabling from April 16, 2002; and tinnitus, rated as 10 percent disabling from March 25, 2005. He receives non-compensable ratings each for bilateral hearing loss and erectile dysfunction. His combined evaluation for rating purposes was 50 percent from March 31, 2000; 60 percent from April 16, 2002; 100 percent from September 30, 2009; 70 percent from March 1, 2015; and is currently 90 percent from October 16, 2015. The Board notes that the Veteran was in receipt of a 100 percent schedular rating from September 30, 2009, through February 28, 2015. When a Veteran receives a 100 schedular rating, the issue of entitlement to a TDIU is rendered moot. Locklear v. Shinseki, 24 Vet. App. 311, 314 n. 2 (2011). For the purposes of effective dates, TDIU claims are treated as though they are increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 449 (2009). Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, 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. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). There are instances, however, when factors must be considered other than the date an increase is ascertainable. One such instance is when the agency of original jurisdiction denied a higher rating and the veteran failed to appeal (or present new and material evidence within a year). In other words, once a claim for greater compensation is disallowed, and that decision has become final on account of the Veteran’s failure to appeal (or present new and material evidence), the effective date for an increase awarded after the final action will be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.156, 3.400. Entitlement to a TDIU from March 1, 2015, is granted. The Veteran’s attorney contends that a TDIU should be granted as far back as March 31, 2000. See Third Party Correspondence, March 2020. Historically, the Veteran filed a claim for TDIU in January 2004, and submitted a second application form in October 2004. The agency of original jurisdiction (AOJ) denied the claim in a February 2005 rating decision. The Veteran has not argued, and evidence of record does not reveal, that new and material evidence was received within a year of notification of that decision or that a notice of disagreement was filed within that period. Statements submitted by the Veteran during that time were essentially duplicative of his assertions of record at the time of the February 2005 denial. Accordingly, that decision became final. 38 U.S.C. § 7105. The Veteran filed a request to reopen a claim of TDIU on February 6, 2008. The AOJ reopened and denied the claim in a June 2009 rating decision. The Board notes that, in April 2010, the Veteran contended that his PTSD had worsened, referred to VA medical records, and asked VA to obtain and review such records in support of his claim. In Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014), the U.S. Court of Appeals for the Federal Circuit held that in situations where a Veteran refers to additional medical records in correspondence received within one year of a rating decision and VA does not make a determination on whether such records are new and material evidence, the claim remains pending. See 38 C.F.R. § 3.156 (b). Therefore, the Board finds that the June 2009 rating decision did not become final, and the claim for a TDIU remained pending since February 6, 2008. As the Veteran did not meet the schedular criteria for a TDIU before September 30, 2009, the Board will remand the question of entitlement to an extraschedular TDIU from February 6, 2008, through September 29, 2009, for consideration by the Director, Compensation Service, in the first instance. The TDIU claim is moot from September 30, 2009, to February 28, 2015, because the Veteran was receiving a 100 percent schedular rating during that time. However, the Board finds that the most probative evidence supports entitlement to a TDIU from March 1, 2015, to the present. Turning to the evidence of record, the Veteran’s DD Form 214 lists a military occupational specialty of refrigeration specialist. After service, he reported working in manual labor as a carpenter, construction worker, and millwright, before stopping work in September 1991. His educational background consists of a high school diploma and some on-the-job training, but no other formal education. The Veteran’s PTSD and left ankle conditions manifested significant functional impairment during the period on appeal. The Board notes that the August 2017 Board decision provided an in-depth listing of the medical evidence. Rather than repeat such listing herein, the Board incorporates it by reference. The Veteran submitted a report from W.C., a vocational expert, in November 2018. W.C. reviewed the claims file, and opined that it is at least as likely as not that the Veteran has been precluded from securing or following a substantially gainful occupation due to the combined effects of his service-connected PTSD, left ankle condition, and prostate cancer likely since March 31, 2000, when service connection for PTSD was granted, or certainly by April 16, 2002 when service connection was granted for left ankle disability. He considered the Veteran’s limited occupational history, and the medical evidence describing functional impairment due to PTSD and ankle conditions, and when rendering his opinion. The Board finds that the most probative evidence, including W.C.’s opinion, is at least in relative equipoise as to whether the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities from March 1, 2015. In reaching this determination, the Board has considered the report from W.C., the medical evidence of record, and the Veteran’s limited occupational history and educational attainment, and finds that such factors place the evidence at least into equipoise on the question of TDIU. With the benefit of the doubt resolved in the Veteran’s favor, a TDIU is granted from March 1, 2015. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to a TDIU, to include on an extraschedular basis, from February 6, 2008, to September 29, 2009, is remanded The matter is REMANDED for the following actions: 1. Refer the Veteran’s claim for TDIU, to VA’s Director of Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b) for the period from February 6, 2008, to   September 29, 2009. Document all development with respect to this directive in the claims file. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.