Citation Nr: 21000417 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-18 082 DATE: January 5, 2021 REMANDED Entitlement to an effective date earlier than February 10, 2015, for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In December 2019, the Board remanded the issue on appeal for additional development. This matter has now returned to the Board for appellate consideration. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. Entitlement to an effective date earlier than February 10, 2015, for a TDIU is remanded. The Veteran, through his representative, asserted entitlement to a TDIU prior to February 10, 2015. Specifically, the Veteran’s representative asserted entitlement to an earlier effective date of February 28, 2012. See 11/30/2020 Appellate Brief, at page 2. The Board notes that the TDIU has been granted from February 10, 2015 onward. See 1/9/2018 rating decision. However, there is evidence of unemployability prior to that date. In this regard, the Veteran testified that he last worked in 2001 or 2002. See 4/22/2010 Hearing Testimony, at page 8. The record showed that the Veteran was provided a VA examination in February 2012. The examiner opined that the Veteran’s lumbar degenerative disease, bilateral knee disability, and ankle disability did not limit the Veteran’s ability to have a substantially gainful employment. See 2/28/2012 VA Examination. The Board finds this opinion inadequate. The examiner conducted a cervical disability examination; yet provided an unemployability opinion due to lumbar degenerative disease, bilateral knee disability, and ankle disability, for which he did not conduct an examination. Additionally, the Veteran, through his representative also raised this issue. See 11/30/2020 Appellate Brief, at page 2. For the reasons discussed above, the Board finds that a remand is warranted for a retrospective opinion as to whether, and to what degree, the Veteran’s service-connected disabilities resulted in functional impairment relative to his ability to obtain and maintain gainful employment during the time period prior to and around the February 2012 VA Examination. Furthermore, prior to February 10, 2015, the Veteran does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). It is VA’s established policy 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. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if the schedular percentage threshold criteria are not met, but there is evidence that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). There is competent evidence, to include the Veteran’s assertions via his VA Form 21-8940, suggesting that he was unable to work due to his service-connected disabilities prior to February 10, 2015. See 11/9/2016 VA Form 21-8940; /22/2010 Hearing Testimony, at page 8. As such, the Board finds that a referral is warranted. This matter is REMANDED for the following action: 1. Obtain a retrospective opinion from an appropriate examiner (or examiners, if needed) as to the Veteran’s functional impairment resulting from his service-connected disabilities of lumbar and cervical degenerative disease, bilateral knee disability, and ankle disability prior to and around February 2012. The examiner is discuss the functional impairment the Veteran’s service-connected disabilities relative to the Veteran’s ability to perform occupational tasks during that time period. In this regard, comment on the effect of the Veteran’s service-connected disabilities on his/her ability to function in an occupational environment and describe any identified functional limitations. Focus and reflect on the functional impairments and how these impairments impact occupational and employment activities (e.g., standing, sitting, lifting, typing, computer use, answering phones).. 2. After completing step # 2, refer the Veteran’s request for a TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to February 10, 2015. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.