Citation Nr: 20044572 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 18-14 098 DATE: July 2, 2020 ORDER Entitlement to an effective date of November 16, 1998, for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. A November 16, 1998, VA treatment record constituted an informal claim for TDIU. 2. Resolving reasonable doubt in the Veteran’s favor, his service-connected residuals of a right thigh and groin injury prevented him from securing or following a substantially gainful occupation beginning November 16, 1998. CONCLUSION OF LAW The criteria for an effective date of November 16, 1998, for TDIU are met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1960 to March 1963. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2018, the Board remanded the claim for additional development. Effective Date – TDIU In this case, the Veteran has been awarded TDIU effective June 27, 2005. He maintains that he is entitled to an effective date of November 16, 1998, for TDIU. Generally, and 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 later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In a November 16, 1998, VA treatment record, a clinical psychologist stated that the Veteran was “totally disabled in holding down any type of employment due to the thigh muscle and groin injury.” As noted in its May 2018 remand, the Board finds that the VA treatment record constituted an informal claim for benefits pursuant to 38 C.F.R. § 3. 157(b) (in effect prior to March 24, 2015). Therefore, the remaining question is when entitlement to a TDIU arose. Prior to June 27, 2005, the Veteran was only service connected for residuals of a right thigh and groin wound. That disability has been evaluated as 40 percent disabling since February 28, 1995. Therefore, he does not meet the schedular percentage criteria for assignment of a TDIU prior to June 27, 2005. 38 C.F.R. § 4.16(a). However, it is VA’s policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). Significantly, however, the Board has no power to award a total evaluation on the basis of 38 C.F.R. § 4.16(b) in the first instance without evidence that the claim was referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In May 2018, the Board remanded the claim so that the claim could be referred to VA’s Director of Compensation Service. In an April 2020 Memorandum, the Director determined that the overall evidence failed to support that an extraschedular TDIU was warranted prior to June 27, 2005. The Director noted that an August 2000 VA examination report indicated that the Veteran retired from the post office due to a left shoulder and left wrist condition and that on examination of the right groin/lower extremity, there was no muscle atrophy and muscle strength was normal. The examiner also stated that the service-connected bayonet wound had not developed any changes to make it more disabling that it had been in the past. The Director also noted that a September 2000 private medical record indicated that he had been treated for chronic fibromyalgia and as a result, was unable to be employed full-time. In addition, a March 2001 VA examination report noted tenderness in the groin and inguinal region; however, range of motion of the right hip was normal. The examiner stated that the Veteran would not be able to work because of the right inguinal region injury, but the Director noted that no justification was provided, and that a different examiner stated that if the stab wound were the only disability, he might be disabled from a lifting job but should have been able to do other types of work. In April 2020, a private vocational consultant provided a retrospective opinion. She opined that it was more likely than not that the Veteran was unable to secure and follow any substantially gainful employment, to include sedentary employment, since at least 1998, due to his service-connected residuals of the right thigh and groin injury. The consultant provided a detailed review of the evidence, including evidence cited by the Director, and included rationale for her opinion. The Board finds the opinion both competent and probative evidence in support of the Veteran’s claim. The Board has also reviewed the contemporaneous medical evidence during the relevant time period and finds that it is it at least in equipoise as to whether the Veteran’s service-connected residuals of a right thigh and groin injury precluded him from securing and following substantially gainful employment. As noted above, a November 1998 VA treatment record indicated that the Veteran was totally disabled in holding down any type of employment due to his service-connected disability. A June 2000 private treatment record indicated that he had fibromyalgia and myofascial dysfunction of the left shoulder and that his major problem at that time was pain in the left shoulder. A July 2000 Assessment of Residual Functional Capacity indicated that standing and sitting were unlimited; however, the Veteran could not lift more than 10 pounds, walk more than one or two blocks, walk up more than two flights of stairs, and had limited bending. An August 2000 VA examination report indicated that he walked with a slight lip, had no muscle atrophy or weakness, and that his ankles, knees and hips all seem to move normally, although full flexion of the right hip elicited a pain response. A March 2001 VA examination indicated that the Veteran’s service-connected injury had gotten steadily worse, that he had a neuroma taken out to stop severe pain, that he walked with a cane and had a marked limp, and that although range of motion was fairly good, he had pain going all the way down to his foot from the injury and that this was the main reason he could not work. An October 2001 VA treatment record indicated that he reported worsening groin pain and described electric shocks down the right medial thigh. In November 2002, it was noted that he walked with a cane in apparent pain. A May 2004 VA examination report indicated that he continued to have pain and swelling in the area of the incision, had two surgeries to remove scar tissue and neuromas, and continued to have pain in the right thigh, which went down his right leg and caused numbness in his bit toe. It was noted he had received multiple injections to the area of the femoral nerve. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disability precluded him from securing and following substantially gainful employment beginning November 16, 1998. 38 C.F.R. § 4.16. Accordingly, the criteria for an effective date of November 16, 1998, for TDIU have been met. See 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.