Citation Nr: 21069961 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 10-40 809A DATE: November 22, 2021 ORDER Entitlement to an effective date earlier than June 12, 2004 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to June 12, 2004, the probative evidence of record does not show the Veteran's service-connected disabilities rendered him unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier than June 12, 2004 for the award of total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from August 1966 to March 1967. The claim on appeal has an extensive procedural history, to include being brought before the Board in May 2010 and July 2013 and remanded for further development. Most recently, an April 2020 Board decision denied the Veteran's claim for TDIU prior to June 12, 2004. In April 2021, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Court vacated and remanded the April 2020 Board decision as to the above issue. The Court found that the Board did not provide an adequate reasons and bases. Specifically, the Court found that the Board did not adequately address why the Veteran was able to maintain or follow employment prior to June 2004 when the evidence of record showed the Veteran was let go from his United States Postal Service (USPS) employment due to his limitations caused by his service-connected disabilities. Entitlement to an Earlier Effective Date: TDIU prior to June 12, 2004 The Veteran contends that the award for TDIU should be granted an effective date earlier than June 12, 2004. The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date. Otherwise, the effective date is the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). However, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § § 3.400 (o)(2) are applicable only where the increase precedes the claim, provided also that the claim is received within one year after the increase. In those cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997). A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). Here, the Veteran filed his claim for TDIU in November 2004. The evidence of record showed the Veteran had lost his job due to his service-connected disabilities on June 12, 2004, and therefore, he was awarded a TDIU from such date. However, at the time the Veteran filed his claim for TDIU, the Veteran had a pending increased rating claim for his bilateral pes planus, which he filed in April 1994. During his statements regarding his bilateral pes planus, the Veteran often noted that he was totally disabled and unable to work. Therefore, the issue of TDIU was reasonably raised by record since the filing of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record). The Board notes that prior to April 1994, the Veteran did not have any open claims for TDIU. The Veteran did file a claim for TDIU in November 1987, which was denied in an April 1988 rating decision. The Veteran was informed of this decision but did not appeal it, nor did he submit new and material evidence within one year of the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the denial of the claim became final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Prior to June 2004, the Veteran's compensable service-connected disabilities are bilateral pes planus rated as 30 percent disabling from March 18, 1967 and as 50 percent disabling from October 11, 1993, and from March 28, 1994 he is service-connected for degenerative arthritis of the thoracolumbar spine rated as 20 percent disabling, and right and left ankle osteoarthritis each rated as 10 percent disabling. The combined rating for his service-connected disabilities is 70 percent from March 28, 1994. Therefore, for the entire appeal period, the Veteran meets the rating criteria under 38 C.F.R. § 4.16 (a). However, although the Veteran meets the schedular percentage criteria, the Board finds that the overall evidence of record does not show his service-connected disabilities rendered him unable to obtain or maintain gainful employment prior to June 12, 2004. The evidence of record shows the Veteran has a two-year degree in computer science and his work history has consisted of being a store shift manager, file clerk, automobile factory worker, bus driver, martial arts instructor, and a USPS mail carrier. In October 1993, the Veteran underwent a private examination. The Veteran complained of arthritis in the ankles. The Veteran had pain on range of motion in both ankles and grinding. The Veteran had walked with antalgia bilaterally. He had a flop gait and abductory twist, and abducted gait. He had slight decrease in muscle strength for extension and flexion of both ankles. The physician advised the Veteran to perform non-weight bearing exercises, such as swimming, and go to physical therapy. The physician also recommended excellent running shoes. In December 1994, the Veteran was provided a VA examination for his bilateral pes planus. The Veteran complained of severe pain in his calf, knee, hip, and back. Upon examination, the Veteran had normal standing posture. However, he was unable to squat and had limited pronation. He was also unable to rise on toes or heels because of severe pain. The examiner noted the Veteran's function was limited because of pain and deformity of flat feet. The Veteran was also noted as having deformed gait. In May 1997, the Veteran was seen by a private physician for a comprehensive orthopedic evaluation. The Veteran complained of right hip pain. He reported being extensively involved in various types of martial arts and was involved in competition. He reported being involved in a high level of physical activity in those areas for the last 40 years. In August 1999, the Veteran attended another VA examination. The Veteran complained of pain in his feet and ankles that occurs all day. He reported sitting in one place and standing up, walking, going up and down stairs, or any kind of twist to the ankle cause a lot of ankle pain. He reported limited endurance during activities. He reported teaching martial arts three times a week, in which the Veteran has to mainly stand and use his upper extremities. The Veteran reported his symptoms interfere with his functional activities. He reported wearing bilateral ankle braces, foot inserts, and tries to wear proper shoes. The examiner noted the Veteran's flat foot status was moderately severe to severe, as well as the functional impairment was moderately severe to severe. In June 2004, the Veteran attended a physical examination for his USPS position. The physician stated the Veteran had aching pain in his feet with prolonged standing and walking for more than several hours. The physician noted the Veteran was very fit and a highly competitive martial arts instructor who competes in championships. The physician also noted the Veteran had severe bilateral pes plano deformity; however, his lumbar spine was within normal limits. The physician found that the Veteran was at moderate risk for incurring injury over the next six months for his job as a rural carrier. The physician then recommended the Veteran avoid standing or walking activities to no more than four hours per day. The physician then stated that within this limitation, he can work in a full-time basis. The Veteran reported working at the USPS from December 3, 2003 to June 11, 2004. He reported working 45 hours a week and making $2200 during his highest earning month. In the Veteran's October 2003 USPS application for casual employment, the Veteran reported being a head martial arts instructor at two martial arts studios since 1990. He reported scheduling and teaching martial arts and self-defense classes, as well as performing clerical duties, handling computer operations, and bookkeeping duties. After review of the evidence of record, the Board finds that the Veteran's service-connected disabilities did not render him unable to obtain or maintain gainful employment prior to June 12, 2004. In accordance with the Court's Decision, the Board will first address the Veteran's USPS employment. The Board notes that while the Veteran was terminated from his USPS employment due to his disabilities, prior to the Veteran's June 2004 examination, the Veteran reported working full time and 45 hours a week. He was also noted as making $8.00 per hour, which exceeds the poverty threshold for two adults in 2004. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.htm (showing the poverty threshold for two adults in 2004 as $12,335 per year). Of note, a full-time job paying $8.00 per hour would amount to over $16,000 per year. The evidence also does not show any complaints regarding his employment during this time, and he was not provided any accommodations in performing his job, nor was there evidence that it was a sheltered environment. Therefore, the Veteran's employment at USPS was not marginal. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Additionally, the Veteran reported continuing to compete in martial arts events during his employment with the USPS and even intended to compete internationally later that year. Further, the physician in his June 2004 USPS examination found that as long as the Veteran did not stand for more than four hours a day, he would be able to perform full time work. Lastly, following his termination, the Veteran filed a complaint with the Equal Employment Opportunity Commission (EEOC) and was later reinstated with the USPS. In fact, the Veteran reported working again with the USPS from July 2006 to July 2007. Thus, despite his initial termination, the evidence does not show he was unable to obtain or maintain gainful employment due to his service-connected disabilities. The Board stresses that despite the Veteran having severe bilateral pes planus with ankle and back pain prior to June 2004, the Veteran continued to perform and compete in martial arts. The Veteran consistently reported being active in his practice of Tae Kwon Do and other forms of martial arts. He also reported in his May 1997 private examination that he was extensively involved in martial arts and participated at a high level of physical activity over the past 40 years, which does not show the Veteran would be unable to perform all forms of physical labor. Although the Veteran reported not receiving an income from his martial arts employment, he was still able to hold the position of head instructor during the entire period. As provided above, the fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative, as the ultimate question is whether the veteran is incapable of performing the physical and mental acts required by employment because of his service-connected disabilities, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. Thus, the Board finds that the Veteran was capable of performing the physical and mental acts to find employment because martial arts instructing can be and is known as a form of gainful employment. Moreover, the evidence of record does not show the Veteran's service-connected disabilities prevent him from performing any non-physical work. Although his bilateral pes planus was noted as being severe and causing functional limitations, those limitations were only in activities that require weight-bearing movements. Such limitations do not preclude him from non-physical work, to include in clerical or office-like settings or other positions with minimal physical activities and/or with the ability to sit during the workday. In fact, the evidence of record shows the Veteran has training and a prior history of clerical and non-physical employment. The Veteran has a computer science degree and is very familiar working with computers. This experience is further shown in his October 2003 USPS application where he reported his current duties at the martial arts studios included performing clerical work and computer operations. Thus, the Veteran's skills would be transferable to other less physically straining areas of work, to include administrative clerical work, which would allow him to be seated. Therefore, the probative evidence of record shows that the Veteran was not incapable of performing the acts required in obtaining and maintaining a substantially gainful occupation which entails non-physical work prior to June 2004. Accordingly, based on the evidence of record, the Board concludes that the Veteran was not rendered unable to obtain or maintain gainful employment due to his service-connected disabilities prior to June 12, 2004. When considering the Veteran's education and employment background, as well as the medical evidence of record, the Board finds a grant of TDIU prior to June 12, 2004 is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.