Citation Nr: 21063133 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-21 159 DATE: October 13, 2021 ORDER The October 17, 2019, Board of Veterans' Appeals (Board) decision, denying service connection for a low back disability, is vacated. Entitlement to an earlier effective date of July 31, 2012 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. On August 21, 2019, the Veteran's represented requested a 90-day extension of appeal prior to a Board decision; the 90-day extension period would have expired on November 19, 2019. 2. The Board issued its October 17, 2019 decision prior to responding to the August 21, 2019 extension request. 3. The Veteran was unable to obtain or maintain substantially gainful employment from July 31, 2012; thus, TDIU arose on July 31, 2012, within one year prior to the TDIU claim. CONCLUSIONS OF LAW 1. The October 17, 2019 Board decision denying an earlier effective date prior to January 12, 2013 for TDIU is vacated. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an earlier effective date for TDIU of July 31, 2012 have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16; Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 12, 1983 to June 11, 1986, November 1, 1989 to October 31, 1993, October 25, 1999 to September 29, 2000, and from October 11, 2000 to April 5, 2001. He served on active duty in the Army National Guard from July 1, 1996 to September 30, 1996 and from March 24, 1997 to September 17, 1997. Then, the Veteran served on active duty in the Air Force from April 17, 2003 to July 24, 2003. This matter is on appeal from a June 2015 rating decision issued by the Regional Office (RO) in Decatur, Georgia. The Board denied the claim in October 2019. After the Board decision, the Veteran's representative filed a motion to vacate the October 2019 Board decision. The basis for the motion to vacate was that a 90-day extension request had been filed on August 21, 2019, and the October 2019 Board decision was issued within the 90-day extension period. In the instant decision, the Board vacates the October 17, 2019 Board decision denying an earlier effective date prior to January 12, 2013 for TDIU and grants the August 21, 2019 request for a 90-day extension. Legal Authority for an Earlier Effective Date Under Chapter 51 of Title 38 of the United States Code, the effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). 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 as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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 a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16 (a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38C.F.R. §4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Entitlement to an Earlier Effective of July 31, 2012 for TDIU The Veteran appeals for an earlier effective date for the grant of TDIU prior to January 12, 2013. In this case, a TDIU claim form (VA Form 21-8940) was filed on February 21, 2013. The RO denied the claim in an October 2013 rating decision, and a notice of disagreement was filed in March 2014. During the pendency of appeal, the Veteran filed another VA Form 21-8940 in November 2013 and again in May 2015, the RO issued an interim adjudication in a November 2015 rating decision. A statement of the case was issued in April 2017. The Veteran filed a substantive appeal in April 2017. During the pendency of the appeal, the Veteran filed another VA Form 21-8940 in November 2015. Another interim adjudication was issued in a September 2018 rating decision, which granted a TDIU, effective from January 12, 2013, finding that this was the date the Veteran last worked. The Veteran filed a January 2019 notice of disagreement with the effective date assigned to the TDIU. A statement of the case was issued in June 2019 on the issue of effective date for TDIU. A substantive appeal for the effective date issue was filed in July 2019. The February 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which was received on February 21, 2013, indicates that the Veteran last worked full time from March 2011 to January 2013 as a clerk at Kmart, working as many as 27 hours a week. During this timeframe, the Veteran lost 4 months of work from illness. The Veteran finished high school and completed 2 years of college. The Veteran reported that he has not received any education or training since he became too disabled to work. The Veteran claimed that it was difficult for him to perform his job because of his limitations when standing, lifting, and walking. After a review of all the evidence, the Board finds that entitlement to TDIU arose on July 31, 2012, as that was the date within one year prior to the February 21, 2013 TDIU claim on which it was factually ascertainable that the service-connected disabilities prevented the Veteran from retaining substantially gainful employment. Medical treatment records from the Social Security Administration (SSA), submitted to the record in July 2013 indicate that the Veteran's service-connected disabilities affected his employment as of July 31, 2012 (within the one year period prior to the TDIU claim in February 2013). While the Veteran was working at this time, it was part-time (27 hours) and as of July 31, 2012 he had to start making changes to his work activity. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). The Veteran was service connected and rated for the following disabilities from July 31, 2012: chronic tension headache rated at 50 percent from March 14, 2014, major depressive disorder rated at 50 percent from March 14, 2014, right hip osteoarthritis rated at 100 percent from April 23, 2013 and decreased to 50 percent from June 1, 2014, left hip osteoarthritis rated at 100 percent from February 4, 2014 and decreased to 50 percent from April 1, 2015, radiculopathy in the right upper extremity rated at 20 percent from November 19, 2010 and increased to 40 percent from December 30, 2016, radiculopathy in the left upper extremity rated at 20 percent from November 19, 2010 and increased to 30 percent from December 30, 2016, right hip degenerative joint disease with limited flexion and extension rated at 20 percent from November 19, 2010 to April 23, 2013, chronic strain with muscles spasm in the cervical spine rated at 10 percent from November 19, 2010 which was increased to 20 percent from February 14, 2013 then 100 percent from October 5, 2018 and decreased to 20 percent from January 1, 2019, left hip degenerative joint disease with limited extension rated at 10 percent from November 19, 2010 to February 4, 2014, degenerative disease in the lumbar spine rated at 10 percent from November 19, 2010, arthritis in the right thumb and index finger rated at 10 percent from November 19, 2010, right little finger arthritis rated at 0 percent from November 19, 2010, left hip degenerative joint disease with limited flexion rated at 0 percent from November 19, 2010 to February 4, 2014, left hip degenerative joint disease with limited abduction rated at 0 percent from November 19, 2010 to February 4, 2014, right hip degenerative joint disease with limited extension rated at 0 percent from November 19, 2010 to April 23, 2013, right hip degenerative joint disease with limited abduction rated at 0 percent from November 19, 2010 to April 23, 2013, residual surgical scar on the right hip rated at 0 percent from April 23, 2013, and left hip scarring rated at 0 percent from February 4, 2014. (Continued on the next page) Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an earlier effective date for TDIU from July 31, 2012, but no earlier, have been met. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.