Citation Nr: 21070525 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-48 583 DATE: November 24, 2021 ORDER Entitlement to an effective date earlier than April 6, 2010, for the grant of a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities on an extra-schedular basis under 38C.F.R. § 4.16(b), is denied. FINDINGS OF FACT 1. The Veteran filed increased rating claims on June 17, 2008. 2. The preponderance of the evidence of record does not demonstrate that the Veteran was entitled to TDIU prior to April 6, 2010. CONCLUSION OF LAW The criteria for an effective date prior to April 6, 2010, for the grant of entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110, 7105 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from August 1961 to August 1963 and had subsequent service in the Army Reserve, including a period of active duty training from September 22, 1995, to September 24, 1995. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In December 2019, the Board remanded this issue in order to submit the matter to the Director of Compensation for consideration. This development was completed. While on remand, the Veteran's representative submitted a December 2019 statement requesting a copy of all documents pursuant to the Board's recent remand directive, to include all medical records, examination reports, and any other documentation. The representative indicated that, if there has been a VA medical opinion, he would request a copy of the examiner's curriculum vitae and any examination inquiry, engagement letter, or questionnaire directed to the examiner, specifically the October 24, 2017, VA examination. In September 2021, the Veteran was issued a complete copy of the claims file. In a separate September 2021 letter, the Veteran was informed that the examiner's curriculum vitae had not been provided to him, as the claims file does not maintain documents of that nature. The Veteran was informed that his appeal would be remanded, should the Board decide that the records he described were necessary to his claim. As the issue on appeal is entitlement to TDIU prior to April 6, 2010, the Board does not find that a 2017 VA examination for a nonservice-connected disability or any post-December 2019 remand medical examinations or opinions would be relevant to this claim. Therefore, as irrelevant medical evidence will obviously not be discussed in this determination, the Board finds that the duty to assist has been met and will proceed to adjudicate the claim, as done below. The Veteran claims that an earlier effective date, prior to April 6, 2010, should be assigned for the grant of entitlement to TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability 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) (2020). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b) (2020). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). TDIU is a type of increased rating claim. As such, the laws governing the assignment of effective dates for these types of claims apply. 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 increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Generally, the effective date of an evaluation and award of service-connected compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If it is factually ascertainable that an increase in disability occurred one year or less prior to filing a claim for an increased rating, the date of the worsening can serve as the effective date. If the worsening occurred more than one year prior to the date of claim, the date of claim will serve as the effective date. 38 C.F.R. § 3.400(o)(2). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2020). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, the Board notes that the Veteran submitted a claim for entitlement to an increased rating for his service-connected head and shoulder conditions on June 17, 2008. In a statement received on June 26, 2012, the Veteran indicated that he wished for entitlement to TDIU to be considered. In the July 2017 decision, the Board found that, regardless of the date of the Veteran's explicit claim for a TDIU, the issue of entitlement to a TDIU was raised as part and parcel of the June 17, 2008, claims for increased ratings for service-connected traumatic brain injury (TBI) and left shoulder disability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Court subsequently held that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal or explicit claim for TDIU in all aspects of the appeal and even when a Regional Office (RO) decision addresses TDIU for part of the claim period, TDIU nonetheless remains part and parcel of a Veteran's increased rating claim unless he has received the highest rating possible for the whole period on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). Thus, the Board will treat the Veteran's June 17, 2008, increased rating claims as a claim for entitlement to TDIU as well. The Board acknowledges that, from June 17, 2008, to April 6, 2010, the Veteran does not meet the schedular criteria for entitlement to a TDIU. Specifically, prior to April 6, 2010, the Veteran was service connected for TBI with posttraumatic headaches (40 percent) and a left shoulder disability (30 percent). However, the collective evidence of record reflects that the Veteran has been unemployed since at least 2008. As such, the Board must consider whether the Veteran is entitled to TDIU on an extraschedular basis prior to April 6, 2010. In this case, the Board notes that the evidence has already been referred to the appropriate VA officials for consideration of entitlement to TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Specifically, in June 2021, the Executive Director of Compensation Service issued an Advisory opinion on this matter. This Director reviewed the evidence in its entirety before determining that the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions, and entitlement to TDIU under 38 C.F.R. § 4.16(b) prior to April 6, 2010, must be denied. Having reviewed the record, the Board agrees with the June 2021 administrative review by the Director of Compensation Service and finds that the evidence of record does not reflect that the Veteran was precluded from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience by reason of his then-service-connected disabilities prior to April 6, 2010. As such, the Board finds that April 6, 2010, is the correct date for the grant of entitlement to TDIU. In this regard, the Board notes that the Veteran underwent a VA Brain and Spinal Cord examination in July 2008. It was specifically noted that the Veteran had been self-employed for more than 20 years, and his work related to car paint and a body shop. He reported having lost zero time from work in the past 12-month period. It was noted that his TBI had significant effects on his usual occupation in that he experienced memory loss and decreased concentration. The Veteran also underwent a VA shoulder examination in July 2008. However, the effect of the Veteran's left shoulder disability on his employability was not specifically addressed in this examination report. It was noted that the Veteran's right hand is his dominant hand. In a July 2009 VA Brain and Spinal Cord examination, it was noted that the Veteran retired in 2008 because he was eligible by age or duration of work. It was noted that his previous occupation related to car paint and a body shop. In a March 2010 statement, the Veteran reported that his service-connected TBI resulted in him getting lost, and feeling easily confused, tired every day, and angry for no reason. He reported headaches, trouble remembering things and sleeping, and slowness in thinking and reading. The Board acknowledges the Veteran's assertions that his TBI resulted in problems that affected his employability. However, the Board finds there is simply no medical evidence of record to support the assertion that he was unemployable due to a service-connected disability prior to April 6, 2010. The evidence of record reflects that, as of July 2008, he reported that had been working full-time for 20 years and had missed zero time from work in the previous year. By 2009, he reported that he had retired due to eligibility by age or duration of work. He gave no indication in the June 2009 VA examination report that he was forced to retire due to a service-connected disability. Moreover, the Board has reviewed the Veteran's VA treatment records prior to April 6, 2010, and finds no indication in these records that the Veteran became unemployable due to a service-connected disability prior to April 6, 2010. The Board acknowledges that the Veteran reported in a September 2010 VA spine examination that he had his own business but quit 5 or 6 years prior due to his health conditions. However, as noted, the contemporaneous medical evidence of record surrounding his retirement does not support this assertion. Moreover, a July 2010 VA examination noted that the Veteran retired in 2008 due to eligibility by age or duration or work, and the Veteran did not specifically indicate in the September 2010 VA spine examination that he was unemployable to work prior to April 6, 2010, due to service-connected health conditions alone. While the Board does not doubt that the Veteran's service-connected disabilities had a significant impact on his employability prior to April 6, 2010, there is simply no evidence of record demonstrating that the Veteran's then-service-connected disabilities alone rendered him unemployable prior to April 6, 2010. The Veteran himself reported in 2009 that he retired due to eligibility by or duration of work, and there is no other medical evidence of record demonstrating that the Veteran's service-connected disabilities were of such a severity prior to April 6, 2010, so as render him unemployable. Therefore, the Board concludes that the preponderance of the evidence is against finding that an effective date prior to April 6, 2010, is warranted. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.