Citation Nr: 21003006 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-19 639 DATE: January 19, 2021 ORDER Entitlement to an effective date of October 17, 2003 for the grant of a total disability based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. VA received a VA Form 21-8940 on October 17, 2003. 2. The Veteran was unable to obtain and maintain substantially gainful employment as of October 17, 2003 due to his combined service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date of October 17, 2003 for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1981 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2004 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The procedural history of this matter is extensive, so the Board will summarize the salient parts. The Board denied a TDIU in December 2014. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court granted a Joint Motion for Remand (JMR). Pursuant to the JMR, the Court vacated the Board’s decision, and it remanded the matter to the Board for further proceedings consistent with the JMR. In December 2015, the Board remanded the matter for additional development, which included referral to the Direction of Compensation Service (DCS) to consider a TDIU on an extraschedular basis. As the matter was in remand status, the AOJ granted a TDIU in February 2017. The AOJ assigned an effective date of August 25, 2016. The Veteran appealed that effective date. In May 2018, the DCS found the Veteran was not entitled a TDIU on an extraschedular basis. In October 2019, the Board granted an effective date of March 16, 2011 for the TDIU. In so doing, the Board found the Veteran merited a TDIU on an extraschedular basis. The Veteran appealed the Board’s decision to the Court. In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Court did not disturb the Board's grant of the March 16, 2011 effective date. The Court also vacated the Board’s decision insofar as it denied entitlement to an effective date prior to March 16, 2011, and it remanded the matter to the Board for further proceedings consistent with the JMPR. Issue 1: Entitlement to an effective date earlier than March 16, 2011, for the grant of a total disability based upon individual unemployability (TDIU) TDIU Background Law The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways – formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (emphasis added). The service-connected disabilities, employment history, educational and vocational attainment, and all other factors bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16(b). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Merits The issue in this appeal is, as the Veteran’s counsel states in a November 2020 brief, whether the Veteran is entitled to an extraschedular TDIU from October 17, 2003 to March 15, 2011. The Board agrees with the Veteran's counsel, as it is undisputed that this matter arises from a VA Form 21-8940 the AOJ received on October 17, 2003. To begin, the Board cites the July 2020 JMPR: The Board erred because it failed to provide an adequate statement of reasons or bases when denying entitlement to an extraschedular TDIU. See 38 U.S.C. § 7104(d)(1). Notably, an effective date for an award based on a claim for increased compensation is generally the later of the date of claim or the date entitlement arose. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (discussing effective-date rules); see also 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2). In assigning the effective date for the award of extraschedular TDIU, the Board relied on a March 16, 2011, VA opinion which noted Appellant was “unable to obtain and maintain employment, sedentary, semi-sedentary, or none restrictive.” [R. at 19 (4-25)]. The Board found that the evidence prior to this date, primarily a Social Security Administration examination from June 2005, a VA treatment record from June 2010, and an October 2015 private vocational opinion, did not support a finding of unemployability prior to March 16, 2011. [R. at 20 (4- 25)]. When relying on medical evidence to assign an effective date, the Board must rely on the information in the evidence, rather than the date on which it was created, and make factual findings based on that information. Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). The Board here failed to make factual findings based on the content of the March 2011 VA examination report, particularly considering the October 2015 private vocational expert suggested Appellant had been unemployable due to his service-connected disabilities since 2001. See [R. at 1271 (1271-81) (October 2015 Private Vocational Opinion)]. Additionally, the March 2011 VA examinations of Appellant’s service-connected joint disabilities indicate that all the disabilities had gotten “progressively worse” over time, suggesting that his occupational functioning may have declined prior to the March 2011 examinations. [R. at 2008, 2021-22 (2008-35)]. The Board must address this evidence on remand and explain whether it supports the assignment of an earlier effective date for the award of extraschedular TDIU. Further, in finding that the evidence of record did not support the assignment of an extraschedular TDIU prior to March 16, 2011, the parties agree that the Board erred in failing to address the Court’s holding in Ray v. Wilkie. In Ray, the Court interpreted the term “substantially gainful employment” as having both: (1) an economic component and (2) a non-economic component. 31 Vet. App. 58, 73 (2019). Not only must VA consider whether an occupation produces more than marginal income, it must also assess whether a veteran is “capable of performing the physical and mental acts required by employment.” Id. (quoting Van Hoose v. Brown, 4 Vet. App. 361, 636 (1993) (emphasis in original)). Moreover, the Court held that [i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to • the veteran’s history, education, skill, and training; • whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, the Board failed to discuss the Veteran’s physical limitations in the context of the criteria outlined by the Court in Ray. Therefore, on remand, the Board must adequately explain whether Appellant was capable of securing or following a substantially gainful occupation given the documented physical impairments caused by his service-connected disabilities prior to March 16, 2011. Ray, 31 Vet.App. at 73. The Board, in October 2019, found that the Veteran last worked in 2001, which implies this was the last time the Veteran performed substantially gainful employment. This finding is a factual predicate to its finding of unemployability as of March 16, 2011. Furthermore, the Veteran's Social Security Earnings Record, submitted in October 2015, buttresses this conclusion. With that as background, it is critical to understand the Veteran's disability picture from October 17, 2003 to March 16, 2011. As of October 17, 2003, the Veteran had four service-connected disabilities with a combined disability rating of 50 percent. These disabilities were: 1) Dorsolumbar paravertebral myositis, 40 percent disabling 2) Residuals of fracture, second toe, right foot, 10 percent disabling 3) Right knee patellofemoral pain syndrome medial patella chondromalacia and subchondral cyst changes, 10 percent disabling 4) Bilateral hearing loss, 0 percent disabling As of April 15, 2005, the Veteran's disability picture changed. He had five service-connected disabilities with a combined disability rating of 60 percent. These disabilities were: 1) Dorsolumbar paravertebral myositis, 40 percent disabling 2) Residuals of fracture, second toe, right foot, 10 percent disabling 3) Right knee patellofemoral pain syndrome medial patella chondromalacia and subchondral cyst changes, 10 percent disabling 4) Tinnitus, 10 percent disabling 5) Bilateral hearing loss, 0 percent disabling As of September 25, 2005, the Veteran's disability picture changed. He had six service-connected disabilities with a combined disability rating of 60 percent. These disabilities were: 1) Dorsolumbar paravertebral myositis, 40 percent disabling 2) Residuals of fracture, second toe, right foot, 10 percent disabling 3) Right knee patellofemoral pain syndrome medial patella chondromalacia and subchondral cyst changes, 10 percent disabling 4) Tinnitus, 10 percent disabling 5) Skin condition affecting the hands and feet, 0 percent disabling 6) Bilateral hearing loss, 0 percent disabling The Veteran's disability did not change again until August 25, 2016. Thus, his disability picture on March 16, 2011, the current effective date of his TDIU, was the same as it was as of September 25, 2005. By extension, the Veteran's disability picture changed between October 17, 2003 and March 16, 2011 through the grants of two service-connected disabilities: 1) tinnitus, rated as 10 percent disabling, and 2) a skin condition affecting the hands and feet, rated 0 percent disabling. The Veteran's counsel does not contend, nor does the evidence show, that these two disabilities materially impacted the Veteran's employability. Moreover, by unpacking the Veteran's disability picture, the Board finds the Veteran's disability picture and the impact of his service-connected disabilities upon his activities of daily living in an employment context was substantially the same on October 17, 2003 as it was on March 16, 2011. This finding, when combined with his employment history, the July 2020 JMPR, and counsel's exhaustive November 2020 brief, militates in favor of an effective date of October 17, 2003 for the grant of the Veteran’s TDIU. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.