Citation Nr: A21017263 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 190123-1865 DATE: October 26, 2021 ORDER Entitlement to an effective date prior to August 1, 2016, for entitlement to total disability based on individual unemployability (TDIU), including entitlement to referral for consideration of TDIU on an extraschedular basis prior to August 1, 2016, is denied. FINDINGS OF FACT 1. The Veteran submitted an application for TDIU that was received on January 21, 2010. 2. Entitlement to TDIU was granted effective August 1, 2016. Prior to August 1, 2016, the Veteran had a total combined disability rating of 60 percent based on three disabilities. 3. The Veteran first satisfied the schedular requirements for TDIU as of August 1, 2016. 4. For the period prior to August 1, 2016, the most competent, credible, and probative evidence of record weighs against finding that there exists a reasonable possibility that the Veteran's service-connected disabilities, alone, were of such a nature or severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to August 1, 2016, for the award of TDIU on a schedular basis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to October 1970. A Department of Veterans Affairs (VA) Regional Office (RO) previously issued a rating decision under the legacy appeal system. In August 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The RO issued a RAMP HLR decision in November 2018, which is the decision on appeal. The Veteran was notified of the decision in a January 2019 letter. In his January 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran testified before the undersigned at a June 2021 hearing; a transcript of his testimony has been associated with the claims file. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). As a preliminary matter, the Board notes that although the issue of entitlement to service connection for sleep apnea was discussed at the hearing, the Veteran did not appeal the denial of his claim for sleep apnea on his January 2020 Form 10182. As such, the Board lacks jurisdiction over this issue, and it will not be discussed herein. Earlier Effective Date The law provides that a total disability rating may be assigned where the schedular rating is less than total when a veteran is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, or, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A claim of entitlement to a TDIU is essentially a claim for an increased rating, and therefore, the effective date of an award of such a claim is the earliest date on which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). Here, the Veteran filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which was received on January 21, 2010. He reported that he had not worked as a self-employed HVAC repairman since 2000 due to post-traumatic stress disorder (PTSD), a fracture of the right wrist, chronic arthritis pain in the knees with clinical evidence of torn medial cartilage, pain in the back and hips, and generalized joint pain. Ultimately, the RO awarded TDIU due to a low back disability from August 1, 2016, in a June 2017 rating decision. The Veteran is seeking an effective date for TDIU prior to August 1, 2016. The Veteran asserts that an effective date one year prior to this date is warranted, because he was unable to work because of his service-connected low back disability prior to August 1, 2016. At his Board hearing, he and his representative also argued that the Social Security Administration (SSA) had determined that he was disabled for purposes of receiving supplemental security income prior to that date. These arguments appear to allude to the language of 38 C.F.R. § 3.400(o)(2), which provides that, if an increase in disability precedes a claim for a higher rating by a year or less, the effective date of the higher rating will be the date that the increase is shown to have occurred. At the outset, the Board observes that the date a disability arose or was first diagnosed does not necessarily dictate, govern or equate to the effective date eventually assigned for the grant of service connection or a certain rating for said disability. A TDIU claim is a type of increased-rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, consequently, the effective date rules for increased-compensation claims apply to a TDIU claim). According to 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110 (a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997). Pursuant to Harper v. Brown, 10 Vet. App. 125 (1997), the provisions of 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper, 10 Vet. App. at 126. Thus, three possible dates may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (i.e., the date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date it became factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (i.e., the date of claim) (38 C.F.R. § 3.400 (o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations generally involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, however, the effective date for establishing TDIU does not hinge on determining whether the date that entitlement arose or the date his claim was filed was later. Instead, the effective date for TDIU turns on the date the Veteran first became eligible for TDIU on a schedular basis. To that end, the Veteran first met the schedular requirements for TDIU on August 1, 2016. At that point, the following ratings had been assigned: 50 percent for PTSD, 40 percent for traumatic arthritis of the lumbar spine, and 10 percent for tinea cruris and pedis. His combined disability rating was 70 percent. Prior to that point, however, his combined disability rating was only 60 percent for those disabilities. Even if assuming, for argument's sake, entitlement to TDIU had arisen at some point prior to August 1, 2016, the Veteran would nevertheless not be entitled to TDIU on a schedular basis prior to August 1, 2016. Such a result is precluded by law. Accordingly, an earlier effective date for an award of TDIU on a schedular basis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). The Board acknowledges that TDIU may be granted on an extraschedular basis under 38 C.F.R. § 4.16(b) if it is established that a veteran is indeed unemployable on account of service-connected disabilities. Nonetheless, the Board is precluded from granting TDIU on an extraschedular basis in the first instance, and must refer such matters to the Director, Compensation Service, for initial adjudication where appropriate. Here, referral for consideration on an extraschedular basis is not warranted, as the evidence does not suggest that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment prior to August 1, 2016. To that end, the Board concedes that in a March 2009 determination, SSA concluded that the Veteran was disabled from September 10, 2008. Importantly, however, a disability determination by SSA is not binding on VA, as SSA determinations are based on different law. For instance, SSA determinations discuss both non-service-connected and service-connected disabilities. Although SSA determined that his impairments included PTSD and chronic pain in his back, both conditions for which he is currently entitled to service connection, SSA also based its finding on the impact of several additional non-service-connected disabilities. These additional non-service-connected disabilities include adjustment disorder with mixed anxiety and depressed mood, personality disorder not otherwise specified, antisocial personality disorder, narcissistic personality disorder, and borderline personality traits, as well as a prior history of a fracture of the right wrist with chronic wrist pain and swelling, chronic arthritic pain in the knees with evidence of torn medial cartilage or meniscus in the left knee, and chronic pain in the hips with generalized joint pain symptoms. Because the SSA determination also focused on other, non-service-connected disabilities, the SSA determination is entitled to little, if any, probative weight regarding the Veteran's unemployability for VA purposes. Moreover, despite the Veteran's assertions that he was unemployable prior to August 1, 2016, due to service-connected disabilities, there are conspicuous inconsistencies in the record that undermine the credibility of these arguments. For instance, the Veteran attributed his lack of employment to non-service-connected knee problems at a February 2010 VA examination. Later, in a June 2010 VA treatment record, he stated that he was unable to work as an HVAC repairman because his "hand has become stiff" due to non-service-connected wrist injuries. Subsequently, at a November 2015 hearing, he indicated that his service-connected back and non-service-connected knee disabilities prevented him from working. Given the discrepancies in his statements regarding the reason for his unemployment, the Board finds that the credibility of the Veteran's prior statements is markedly diminished. Furthermore, the record reflects that the Veteran's credibility has been called into question in the past. For example, in an October 2008 Arkansas Department of Health Services Forensic Report, an examiner noted that he had a history of "deceitfulness," such as telling lies to avoid obligations. For this reason, the probative weight of the Veteran's arguments regarding his unemployability due to service-connected disabilities prior to August 1, 2016, is minimal. On the other hand, the more probative evidence of record indicates that, although the symptoms of his service-connected PTSD and low back disability caused impairment prior to August 1, 2016, they did not prevent him from being employed. At a February 2010 VA examination, for instance, the VA examiner noted that he had "mild to moderate" psychological symptoms due to PTSD and that, although he was not working, his PTSD did not preclude employment. In fact, he did not attribute his lack of employment to his PTSD. The examiner also noted that no impairment of thought processing or communication was evident and that no activities of daily living had been precluded. Similarly, in a March 2014 VA examination report, another VA examiner indicated that despite some problems with interacting with others, his PTSD symptoms did not appear to preclude employment. A March 2010 VA examination indicated that he could not lift more than 40 pounds due to his back condition but not that he was precluded from employment as a result. Likewise, an April 2014 VA examination indicated he could not do heavy lifting because of his back, but that sitting or sedentary work was not restricted. These examiners based their opinions on examination findings and indicated that they had reviewed the Veteran's claims file. As such, their opinions are highly probative. The Board acknowledges the Veteran's allegations that his service-connected back disability made it difficult for him to be steadily employed prior to August 1, 2016. However, claiming that service-connected disabilities made it difficult to maintain steady employment are not tantamount to entitlement to TDIU. Significantly, a disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Indeed, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for TDIU to prevail. The mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Here, the ratings that were already assigned for the Veteran's disabilities prior to August 1, 2016, were recognition of the occupational impairment they caused, such as reduced mobility. Ultimately, the claim for an earlier effective date for TDIU on a schedular basis is prohibited as a matter of law. As set forth above, referral for extraschedular consideration is not warranted. As such, his claim must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.