Citation Nr: 20060293 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 16-44 112 DATE: September 14, 2020 ORDER Entitlement to an effective date of December 26, 2006, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s claim was received by VA on December 26, 2006. 2. The Veteran’s service-connected low back and radiculopathy disabilities prevented him from obtaining or maintaining substantially gainful employment for the entire period on appeal. CONCLUSION OF LAW The criteria for entitlement to an effective date of December 26, 2006, but no earlier, for the award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1968 to December 1968. He died in July 2017. The appellant is the Veteran’s surviving spouse and she has been substituted as the claimant for purposes of processing this claim, pending at the time of the Veteran’s death, to its completion. This matter comes 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 August 2019, the appellant appeared for a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in November 2019. At that time, the Board remanded the claim to the Director, Compensation Service for extraschedular consideration. The Director issued an opinion on the matter, denying extraschedular TDIU prior to August 8, 2012 in December 2019. Entitlement to an effective date earlier than August 8, 2012, for the award of TDIU. The appellant contends that an earlier effective date is warranted because the Veteran’s service-connected back disability (spondylolysis L5 with degenerative disc and joint disease and radiculopathy of both lower extremities) prevented him from obtaining or maintaining substantially gainful employment prior to August 8, 2012. The award of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. Section 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation 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. The United States Court of Appeals for Veterans Claims (Court) and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.40(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 521 (1997); see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151 (a). Under current regulations, the term claim means a written communication requesting a determination of entitlement or evidencing a belief under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (2019). Prior to March 25, 2015, however, the term claim or application meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). Prior to that date, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may have been considered an informal claim. Such informal claim must have identified the benefit sought. Upon receipt of an informal claim, if a formal claim had not been filed, an application form would have been forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it would have been considered filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening would have been accepted as a claim. 38 C.F.R. § 3.155 (2014). A claim for a TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted with the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the record reflects that in a May 2011 decision, the Board determined that a May 1969 rating decision denying service connection for a back disability was final. The Board noted that the Veteran’s request to reopen his claim of service connection for a low back disability had been received in December 2006 (and the record reflects a specific date of receipt of December 26, 2006). After considering the evidence of record, the Board determined that new and material evidence had been received to reopen the previously denied final claim of service connection for a low back disability and granted service connection for spondylosis at L5 and spondylolisthesis at L5 and S1. In a November 2011 rating decision, the RO effectuated the Board’s decision granting service connection for the Veteran’s low back disability. The RO assigned an initial 20 percent rating, effective December 26, 2006, the date of receipt of the Veteran’s claim to reopen. The Veteran initiated an appeal of the initial rating assigned in March 2012. While the appeal was pending, the Veteran submitted a Statement in Support of Claim, received by VA on August 8, 2012, on which he indicated that he felt entitled to a higher rating for his low back disability and was receiving treatment for his disability from VA. After obtaining additional VA clinical records dated to March 2012, the RO issued a Statement of the Case on November 8, 2012, denying an initial rating in excess of 20 percent. (The Board notes that in a November 2012 rating decision, the RO also granted service connection for right and left lower extremity radiculopathy and assigned initial 10 percent ratings, effective December 26, 2006). The record indicates that the Veteran did not thereafter submit a VA Form 9 or otherwise perfect an appeal within 60 days of the Statement of the Case. On February 1, 2013, however, within 60 days of the Statement of the Case, the Veteran underwent a VA medical examination at which the examiner noted that the Veteran exhibited severe low back pain to the point that he was unable to get comfortable during the questioning and had to keep standing and trying to sit. The examiner indicated that the Veteran was unable to bend forward, backward or side to side without having severe lower back pain. He indicated the Veteran’s back disability impacted his employment; as an example, the Veteran was unable to perform household chores anymore. In addition to the VA examination, the RO obtained additional VA clinical records not previously considered at the time of the November 2012 Statement of the Case. In pertinent part, these records showed that during a July 2002 VA clinic visit, the examiner noted that the Veteran had had no significant pain relief in lower back pain since his last lumbar facet joint injection and ended up having to go to the emergency room due to severe back cramping pain. The examiner indicated that the Veteran’s lower back “is worsening and disabling” and was such that he had difficulty driving or functioning in his daily life. In a February 2013 rating decision, the RO increased the rating for the Veteran’s low back disability to 40 percent, and increased the ratings assigned for right and left lower extremity radiculopathy to 40 percent and 20 percent, respectively. The effective date of the increased ratings was August 8, 2012, the date the RO determined that the claim for the increased rating had been received. In an April 2013 statement, the Veteran argued that his ratings should be effective December 26, 2006, corresponding to the date of receipt of his claim. He further indicated that he had been unable to work and had been in receipt of disability benefits from the Social Security Administration since 1985 for his service-connected low back disability. In an October 2014 rating decision, the RO granted TDIU, effective August 8, 2012, the date the RO determined that his claim for the increased rating for his service-connected back disability had been received. The Board finds, however, that the July 2012 VA treatment records and the February 2013 VA examination discussed above were new and material evidence which had been received prior to the expiration of the appeal period. Thus, it should have been considered as having been filed in connection with the December 26, 2006, pending claim. 38 C.F.R. § 3.156(b). Since it was not, the claim remained open and pending. In addition, the Veteran’s April 2013 statement that he was unable to work due to his service-connected low back disability raised the TDIU issue as part and parcel of the December 26, 2006, claim. For these reasons, the Board finds that the Veteran’s claim was received on December 26, 2006. Having determined the date of receipt of the claim, the next question for consideration is the date entitlement arose. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of his or her service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the period dating from December 26, 2006 to August 8, 2012, service connection was in effect for spondylolysis L5 with degenerative disc and joint disease of the lumbar spine, rated as 20 percent disabling, and radiculopathy of the right and left lower extremities, each rated as 10 percent disabling. The Veteran’s combined disability rating was 40 percent. Thus, he did not meet the minimum threshold requirements for consideration of a schedular TDIU under 38 C.F.R. § 4.16(a). Despite the Veteran not meeting the schedular criteria for TDIU prior to August 8, 2012, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). As noted above, the Board referred this case to the Director, Compensation Service at the time of the last Board decision, with the Director rendering a negative decision on entitlement to TDIU on an extraschedular basis prior to August 8, 2012. Turning to the evidence of record, the Board notes that the Veteran had been unemployed since at least 1985, prior to the period on appeal. The Board also notes that the Veteran had been in receipt of Social Security Administration (SSA) disability benefits since February 1983 due to his low back disability. On his VA Form 21-8940, he reported that his service-connected back injury prevented him from working and that he became too disabled to work in March 1985. In support of his claim, the Veteran submitted several lay statements from family members and friends, S.C., B.G., W.G., and R.W., to the effect that the Veteran experienced progressively worsening back pain since his active duty service, which interfered with his ability to sit or stand for prolonged periods of time and resulted in his inability to work. See correspondence from S.C., B.G., and W.G. received June 2007; correspondence from R.W. received July 2007. In January 2009 correspondence, the Veteran’s private physician, Dr. A.H., noted that the Veteran had received multiple treatments for his back pain, both surgical and medical. See January 2009 correspondence from Dr. A.H. received February 2009. A July 2011 VA examination noted the Veteran’s reports of lower back pain. The Veteran reported that there were days that he could not get out of bed due to his lower back pain. The Veteran also reported flare-ups, during which he described having to lay on the floor with his legs elevated. He reported that tears came to his eyes when he attempted to bring his knees to his chest. The Veteran also reported that he could not sit up and get out of bed. Rather, he had to roll out of bed. He further reported that he could no longer ride his riding lawn mower because of the “jarring” to his lower back. The examiner determined that the Veteran’s back disability impacted his ability to work. The examiner noted the Veteran’s reports that he was unable to work since the age of 32 due to his back condition. The Veteran reported that as time went on his lower back got “worse and worse” the more he had to use it. A December 2011 VA treatment record noted the Veteran’s reports that he experienced no pain relief from his caudal injection. The Veteran reported constant lower back pain, which he rated from 4 to 8 on a 10-point scale. He also reported that the pain occasionally radiated from his groin to the inner and posterior thigh to his knee level bilaterally. It was recommended that the Veteran be scheduled for a repeat injection in 2 to 3 months. See December 2011 Pain Telephone Encounter Note. A March 2012 VA treatment record noted that the Veteran presented for a scheduled steroid injection for his chronic back pain. The Veteran rated his persistent lower back pain from 6 to 10 on a 10-point scale. He reported occasional radicular pain from his left lower back/hip to the lateral thigh, and right from the groin to the anteromedial thigh. The Veteran also reported significant nocturnal pain, for which he took Gabapentin. It was noted that the Veteran experienced decreased daily function capacity. He reported that he experienced pain getting around his house and that he was unable to finish dishes due to pain. He further reported that it was difficult to drive more than 10 minutes. See March 2012 Pain Outpatient Note. A June 2012 VA treatment record noted the Veteran’s reports that he experienced no significant pain relief in his lower back since his last lumbar facet joint injection. He reported that he went to the ER due to severe back cramping pain. It was noted that his pain was located in the lumbosacral junction with spreading pain to both the pelvic region and upper lumbar, which was worsening and disabling. The Veteran rated the pain from 6 to 8 on a 10-point scale. The Veteran also reported frequent brief and sharp radiating pain which was so severe, it interfered with driving and functioning in his daily life; he rated the pain a 15 on a 10-point scale. Significant nocturnal pain was also noted. See June 2012 Pain Outpatient Note. At the August 2019 Board hearing, referenced above, the appellant testified that the Veteran had not worked since prior to 1983 due to his severe low back pain. The Veteran’s son, J.C., testified that he took the Veteran to the ER on several occasions due to his back pain. He also testified that he had to stop the Veteran from shooting himself in 2006 because of his severe back pain. He further testified that he remembered the Veteran experiencing back pain since he was a child. The Veteran’s neighbor, D.W., testified that he had known the Veteran for 30 years. He testified that the Veteran experienced severe back pain since he had known him, and on occasion he witnessed the Veteran crying due to his back pain. See August 16, 2019 Transcript of Hearing, pages 2-5. After considering the evidence, the Board finds that the Veteran’s service-connected back disability prevented him from obtaining or maintaining gainful employment for the entire period on appeal. The Veteran’s service-connected back disability caused severe pain and interfered with his ability to sit, stand, drive, and function in his daily life. Additionally, the Veteran’s service-connected back disability caused significant difficulty in performing routine occupational tasks and rendered the Veteran incapable of being occupationally productive. Reviewing all of the evidence of record, including the lay statements from the Veteran’s family and friends, the July 2011 VA examination, and VA and private medical records, as well as the August 2019 hearing testimony, the Board finds that the Veteran had significant lower back symptoms that significantly impacted his ability to operate in the workplace. As such, granting the appellant the benefit of the doubt, the Board concludes that the criteria for entitlement to an effective date of December 26, 2006 for the award of TDIU. An effective date earlier than December 26, 2006 is not warranted. As reflected above, although the Veteran had been unable to work since the 1980’s, the effective date of the award of service connection for his low back disability and his right and left lower extremity disabilities was December 26, 2006, corresponding to the date of receipt of his claim to reopen after a prior final denial. Thus, there is no legal basis for an effective date prior to December 26, 2006. 38 C.F.R. §§ 3.400, 4.3, 4.16. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.