Citation Nr: 21002063 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-65 204 DATE: January 12, 2021 ORDER Entitlement to an effective date of November 26, 2012, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT From November 26, 2012, but no earlier, the Veteran’s service-connected bilateral lower extremity peripheral neuropathy and diabetes precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an effective date of November 26, 2012, but no earlier, for the award of entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. The Board remanded the claim in January 2010. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an earlier effective date for the award of a TDIU is granted. The Veteran seeks an earlier effective date, on an extraschedular basis, for the grant of a TDIU. The Veteran retired in April 2012 and his representative specifically argues that the Veteran is entitled to a TDIU effective date of November 26, 2012. The assignment of an effective date for an award of VA disability compensation is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Furthermore, an earlier effective date for TDIU could be as early as the date of claim for the underlying increased rating. See Rice v. Shinseki, 22 Vet. App. 449 (2009). In this case the Veteran’s TDIU claim has arose as part of his increased rating claims from November 26, 2012. The Veteran is currently in receipt of a TDIU effective September 19, 2014 based on his bilateral peripheral neuropathies and diabetes. Prior to September 19, 2014 he does not meet the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a). Specifically, the Veteran does not meet the criteria due to the fact that the Veteran’s upper extremity peripheral neuropathies were not rated as compensable until September 19, 2014. However, entitlement to a TDIU may still be granted on an extraschedular basis where a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Indeed, “[i]t is the established policy of the [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.” Id. The Board specifically remanded the claim for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In an August 2020 memorandum, the Director of Compensation found that the Veteran was not entitled to an extraschedular TDIU. Thus, the Board may decide this issue. Turning to the merits of the appeal the Board notes that the Veteran’s disability picture prior to September 19, 2014 is essentially the same as after, apart from the increased severity of the Veteran’s upper extremity peripheral neuropathy. The decision to grant the TDIU, however, did not rest entirely on the impact of his upper extremity peripheral neuropathy, which was noted to prevent lifting more than five pounds and impeded the Veteran’s ability to use hand tools. The remaining occupational impediments cited at the time of the grant for TDIU were the significant limitations on the Veteran’s ability to sit, stand, or walk for any prolonged period of time, attributed to the Veteran’s bilateral lower extremity peripheral neuropathies; and the restrictions imposed by the Veteran’s eating schedule required by his diabetes. The Veteran’s limited education and occupational history was also cited as an impediment to his ability to obtain or maintain substantially gainful employment. In the opinion on extraschedular TDIU for the earlier period, the Director acknowledged that the Veteran would not have been able obtain or sustain significant physical employment but there was a capacity for sedentary or light physical work. The Board disagrees with this assessment. Specifically, the Veteran’s lower extremity peripheral neuropathy was noted to prevent driving for more than 30 minutes in an April 2013 VA examination, which the Board finds would likely preclude sitting in general for the same amount of time. Taken together, an inability to stand, walk, or sit for any significant period of time would severely limit the Veteran’s options in finding even light physical or sedentary work prior to September 19, 2014. Furthermore, the Veteran’s own statements indicate that he retired from his last job because even the light physical aspects, such as standing, and walking for an hour, were becoming too difficult to do. The Board increased impact of the Veteran’s bilateral upper extremity peripheral neuropathies added further impediments to his occupational capability as of September 19, 2014. However, the Veteran’s educational and occupational history was a more significant factor in establishing his TDIU entitlement. The Veteran has a high school education and his work history is limited to support service work in a home and with a machine company as a tool crib attendant. The Veteran’s education and work history is such that he would likely be limited to employment of a physical nature or non-substantial sedentary employment. These same limitations existed prior to September 9, 2014, presenting an almost identical disability picture. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the when considering the impacts of his disabilities prior to September 19, 2014, it would be highly unlikely that the Veteran would have been able to obtain or maintain any substantially gainful employment. Entitlement to an effective date of November 26, 2012 for the grant of TDIU, on an extraschedular basis, is warranted. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.