Citation Nr: 21071111 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 13-13 422 DATE: November 29, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for tardive dyskinesia is granted. Entitlement to an effective date of May 12, 2005, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's tardive dyskinesia symptoms most nearly approximate severe symptoms. 2. The Veteran filed his claim received May 12, 2005. From that date he was unable to obtain or maintain substantially gainful employment due to his service-connected conditions. 3. It was not factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected conditions prior to May 12, 2005. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for tardive dyskinesia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8103. 2. The criteria for an effective date of May 12, 2005, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to March 1970. The Veteran appealed a February 2010 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran appealed the August 2016, November 2017, and March 2020 Board of Veterans' Appeals (Board) decisions to the Court of Appeals for Veterans Claims (Court). In May 2017, December 2018, and December 2020 the Court remanded the issues to the Board. Pursuant to the March 2020 Board decision, a March 2020 rating decision granted entitlement to TDIU effective June 11, 2008, the date the Veteran's VA Form 21-8940 was received. In May 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the May 2021 Board decision, the increased rating claim has been pending since March 2005. The Veteran has claimed TDIU based in-part on his tardive dyskinesia. As such, TDIU is to be considered prior to June 11, 2008. Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran's condition is rated under Diagnostic Code 8103 for convulsive tics. Under Diagnostic Code 8103, a 10 percent rating is warranted for moderate convulsive tics and a 30 percent rating is warranted for severe convulsive tics. 38 C.F.R. § 4.124. The Note indicates that these characterizations are dependent upon the frequency and severity of the symptoms and muscle groups involved. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in Department of Veterans Affairs (VA) Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. November 2006 treatment records noted a constant tremor in both hands as a side effect of the Veteran's psychiatric medication. The August 2006 examination report regarding posttraumatic stress disorder (PTSD) noted evidence of pill rolling in the Veteran's left hand. The August 2006 examination report regrading neurological disorders noted uncontrolled tremors that are moderate in severity, and that there is severe impact on chores and playing sports. The September 2008 examination report regarding PTSD noted tongue wagging. The October 2009 examination report regarding neurological disorders noted moderate impact on chores, exercise, and recreation. The November 2012 examination report noted involuntary dyskinesias intermittently involving the mouth and tongue and both hands. The September 2019 examination report noted limitations with holding objects and involuntary movements in the face, hands, and feet. The June 2021 examination report noted involuntary movements of the hands and tongue, which causes the Veteran to get tongue tied and slur words. Given constant tremors, involuntary movements of the face, hands, and feet, and severe impact on certain activities, the evidence warrants the conclusion that the symptoms more nearly approximate a severe level of symptomatology. Based upon the evidence of record, the Board concludes that the Veteran's tardive dyskinesia warrants an initial 30 percent rating for severe impairment for the entire period on appeal. This is the maximum rating under the Diagnostic Code. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated 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; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on 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(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Where these percentage requirements are not met, entitlement to benefits on an ES basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation due to 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). The Board does not have the authority to assign an ES total disability rating for compensation purposes based on individual unemployability in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Entitlement to extraschedular (ES) TDIU was denied in a February 2020 decision by the Compensation Service Director. For the entire period on appeal prior to June 11, 2008, the Veteran was service-connected for PTSD at 30 percent disabling, tardive dyskinesia at 30 percent disabling, and a right knee condition at noncompensable levels. The Veteran has not worked since the 1970s when he was employed as a boiler maker. See June 2008 VA Form 21-8940. The Veteran has three years of college education in culinary arts. Id. Dr. C.F.'s May 2005 letter noted the Veteran's psychiatric disorders made it difficult to relate to others, that he is fearful to assume responsibilities, and that he lacks the ability to hold a stable job. November 2006 treatment records noted an inability to remember dates, irritability, anger, and problems with concentration. The October 2008 examination report regarding joints noted knee pain and that the Veteran's condition impacts employment which may require continuous demanding physical endurance. Z.F.'s September 2017 vocational assessment found the Veteran's service-connected disabilities rendered the Veteran unemployable since 1976 given lack of concentration, constant tremors in the hands, and resulting physical limitations. The Board finds Z.F.'s assessment probative. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran has not worked and has not utilized his educational background in the culinary arts. The Veteran previously worked in a manufacturing type job. However, his fine motor skills and constant throbbing of the hands would make such positions unsuitable. In conjunction with his knee condition, the Veteran would be unable to work in any labor position as warehousing or construction. Furthermore, the Veteran's concentration and anger issues would render him unable to work with others or in positions that required repetitive tasks and attention to detail. This would include customer service, computer, and administrative positions. Nevertheless, the Veteran does not have training, experience, or education in any of those fields in order to find gainful employment. Overall, a professional vocational expert has found the Veteran to be unemployable since the 1970s due to his various service-connected disabilities. As such, the Board finds the Veteran credible as to his functional limitations attributable to the combination of his service-connected conditions. During the one-year look-back period prior to the Veteran's March 2005 claim, the evidence does not contain additional medical evidence or other relevant evidence regarding the Veteran's TDIU claim that specifically speaks to symptoms of his service-connected disabilities. At most, the Veteran made a statement in April 2005 noting he was not able to hold a steady job because employers told him that he was a threat to the workforce. However, the Veteran does not provide symptoms or medical treatment records at the time that demonstrate a current inability to hold an employment position. Although the effective date for an increased rating could potentially be awarded within the one-year period preceding the filing of the claim, if a factually ascertainable increase in the disability actually occurred, the medical and lay evidence of record does not reflect the Veteran's service-connected conditions worsened prior to his increased rating claim, received by VA on May 12, 2005. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (2010). As there is no factually ascertainable worsening in the year preceding his claim, the rating assigned herein is effective the date the Veteran's claim was received by VA, which was May 12, 2005. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of May 12, 2005, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.