Citation Nr: 21001011 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-18 176 DATE: January 6, 2021 ORDER Entitlement to an effective date prior to March 31, 2018, for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities have prevented him from securing or following a substantially gainful occupation since March 31, 2018, but no earlier. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 31, 2018, for a TDIU, to include on an extraschedular basis are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from May 1978 to September 1991 and from September 1991 to 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. In May 2017, the Veteran was provided an opportunity for another hearing, but he indicated that he did not want another hearing and requested that the Board consider his case on the evidence of record. In May 2015 and April 2016, the Board remanded the appeal for further development. In October 2017, the Board remanded the appeal for referral to the Director of VA’s Compensation Service (Director) for consideration of an extraschedular rating. In April 2019, the RO granted a schedular TDIU from July 2, 2018. In April 2020, the Board remanded the appeal again for referral to the Director for consideration of an extraschedular rating prior to July 2, 2018. In a July 2020 rating decision, the RO granted an effective date for a schedular TDIU from April 1, 2018. Most recently in September 2020, the RO granted an effective date of March 31, 2018, for a schedular TDIU. Entitlement to an effective date prior to March 31, 2018, for a TDIU due to service-connected disabilities, to include on an extraschedular basis, is denied. TDIU is considered a rating and not a disability. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(1). The Veteran’s award of TDIU is currently assigned an effective date of March 31, 2018, which the Director determined is the date entitlement arose. As noted above, generally speaking the effective date for the award of an increased rating will be the date of claim or the date entitlement arose, whichever is later. Here, the Veteran’s TDIU claim is part and parcel of his underlying increased rating claims for his postoperative left inguinal hernia with a scar, entrapped ilio-inguinal nerve, and hypertension disabilities. Thus, pursuant to Harper v. Wilkie, the issue of TDIU remains in appellate status in conjunction with his increased rating claims noted above, and thus the “date of claim” for the TDIU is March 11, 2009, the earliest of three claim dates. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Next, the Board will determine the date entitlement arose. 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 if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board remanded the claim for such consideration in October 2017 and April 2020, which was provided in September 2020. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Service connection is currently in effect for degenerative arthritis of the cervical spine, rated as 20 percent disabling from September 30, 2015; left shoulder arthritis, rated as 20 percent disabling from January 25, 2017; thoracolumbar spondylosis, rated as 20 percent disabling from January 25, 2017; postoperative left inguinal hernia with a scar, rated as noncompensable from March 12, 1996 and 10 percent disabling from March 11, 2009; entrapped ilio-inguinal nerve rated as 10 percent disabling from March 11, 2009; hypertension rated as 10 percent disabling from October 30, 2009; dizziness rated as 10 percent disabling from April 27, 2010; headaches rated as 10 percent disabling from April 27, 2010; right ankle ligament strain rated as 10 percent disabling from May 9, 2018; right leg femoral rectus strain rated as 10 percent disabling from May 9, 2018; tinnitus rated as 10 percent disabling from May 9, 2018; erectile dysfunction rated as noncompensable from April 27, 2010; and bilateral hearing loss rated as noncompensable from May 9, 2018. The Veteran meets the schedular criteria for a TDIU since January 25, 2017. 38 C.F.R. § 4.16(a). As noted above, the RO granted a schedular TDIU from March 31, 2018; thus, the Board will address whether a schedular TDIU is warranted between January 25, 2017 and March 31, 2018, and whether an extraschedular TDIU is warranted for the earlier portion of the appeal period, or from March 11, 2009 to January 25, 2017. Here, in May 2019, the RO requested the Veteran submit an updated VA Form 21-8940 with full employment history or records showing his annual income, in order to obtain additional information about his employment history and educational background. He did not return the form. In this regard, the Board emphasizes that the duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000). Absent cooperation from the Veteran, the Board must evaluate the other evidence of record addressing his work history. To this end, records furnished by the Social Security Administration (SSA) show the Veteran’s last full-time employment was in a school cafeteria as a Head Cook, and that he stopped working on March 30, 2018 due to his service-connected disabilities. See SSA Records submitted in December 2018. Moreover, VA treatment records reflect that the Veteran was asking a clinician to complete medical forms “to take a leave of absence from his job” in March 2018, and followed up on these forms in April 2018, indicating that he was still employed full time after the currently established effective date for TDIU. The Board will not disturb the RO’s favorable finding in this regard. However, based on the available evidence and the lack of cooperation from the Veteran, the Board finds that the Veteran does not meet the economic component of a TDIU prior to March 30, 2018, and thus this is the “date the entitlement arose” for TDIU purposes. See Ray, supra. As the Veteran’s date of entitlement is later in time than his March 2009 claim, the Board finds that the appropriate effective date for the award of a TDIU is March 31, 2018, as currently assigned. 38 C.F.R. § 3.400(o)(1). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.