Citation Nr: 21071612 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-60 972 DATE: November 30, 2021 ORDER Entitlement to an effective date of December 12, 2013, but not earlier, for the assignment of a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence of record demonstrates that the Veteran's service-connected disabilities rendered him incapable of securing and following a substantially gainful employment consistent with his educational background and work history from December 12, 2013. CONCLUSION OF LAW The criteria for entitlement to an assignment of a TDIU from December 12, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 Army from October 1967 to May 1969, to include overseas service in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This matter was first remanded by the Board in December 2019 because it was intertwined with the Veteran's other claims on appeal. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court) with regards to the denial of his other claims which not currently before the Board. In a July 2020 rating decision, the RO granted the Veteran's entitlement to a TDIU claim, effective January 31, 2020, finding that as of this date, the evidence of record reflects that Veteran's bilateral upper and lower extremities peripheral neuropathy was shown to have increased in severity to render him unable to seek or maintain gainful employment. However, the Veteran's claim for a TDIU prior to that date was remanded by the Board in March 2021, deemed inextricably intertwined with the issue of service-connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, that was also being remanded in that decision. Finally, this matter was remanded in August 2021, for the effectuation of the grant of service connection for an acquired psychiatric disorder and an assignment of an initial rating, which was necessary prior to the adjudication of the merits of the earlier effective date for the Veteran's TDIU claim. Earlier Effective Date for TDIU Generally, the effective date of an award based on an original claim for compensation benefits received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). For increases, the effective date will also be the date of receipt of claim or date entitlement arose, whichever is later, except it shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o). It is the established policy of the 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. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in the process of adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16 (a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16 (a). Extraschedular ratings are intended to serve a "gap-filling" function when the Veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of the Veteran's disabilities is nonetheless inadequately represented. 38 C.F.R. § 3.321 (b)(1). A grant of TDIU results in the Veteran being deemed to have total unemployability with no "gap" to fill by § 3.321(b), and thus rendering the question of extraschedular consideration moot. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 1. TDIU prior to January 31, 2020 The record reflects that the Veteran first submitted a Veterans Application for Increased Compensation Based on Unemployability (TDIU), on October 14, 2014, and October 31, 2014, respectively, reporting that he was not currently employed and that his service-connected prostate cancer and diabetes mellitus (DM), type 2, and his posttraumatic service disorder (PTSD) symptoms, prevented him from securing and obtaining any substantially gainful occupation. He subsequently filed another TDIU application in June 2015, citing same, reporting that he last worked, as a medical technician at a hospital, in 2008. In an October 2015 rating decision, the RO denied the Veteran's claim for TDIU, stating that the evidence of record did not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, finding that he is considered capable of gainful employment based on the evidence of record, citing to a VA examiner's report reflecting that he was not precluded from all types of gainful employment. Further, the RO noted that his last employer reported that the Veteran retired in August 2012, thus, he did not stop working due to his service-connected disabilities. The Veteran filed a Notice of Disagreement (NOD) in November 2015, for the denial of his TDIU claim, including for his increased rating claims for peripheral neuropathy for lower and upper extremities, and service-connection for PTSD/psychiatric. A Statement of the Case (SOC) was issued in October 2017, followed by the Veteran's appeal to the Board. In his appeal, the Veteran reported that consideration was not given for his worsening DM, type II disability and for the reemergence of his prostate cancer, for which he had undergone a radical prostatectomy. As previously noted, in a July 2020 rating decision, the RO subsequently granted the Veteran's entitlement to TDIU claim, effective January 31, 2020, finding that as of that date, the evidence of record reflects that Veteran's bilateral upper and lower extremities peripheral neuropathy was shown to have increased in sufficient severity to render him unable to seek or maintain gainful employment. Notwithstanding this fact, for the reasons discussed below, the Board finds that based on the evidence of record, that the Veteran's service-connected disabilities precluded him from obtaining or maintain substantially gainful employment from the beginning of the appeal period, which is from December 12, 2013, when the issue of a TDIU was first raised on the record as part of the Veteran's increased rating claims for DM, type II, prostate cancer and his service connection claim for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Of note, the Board granted the Veteran service-connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, in August 2021, effective December 12, 2013, the date of his service connection claim for PTSD. The Board notes that the Veteran is currently service connected with compensable ratings for the following disabilities: diabetes mellitus type II (20 percent from 05/23/2011); an acquired psychiatric disorder to include PTSD and major depressive disorder (30 percent from 12/12/2013); peripheral neuropathy, ulnar, median and musculospiral nerves, right upper extremity (20 percent from 06/27/2015, 40 percent from 01/17/2019); peripheral neuropathy, ulnar, median and musculospiral nerves, left upper extremity (20 percent from 06/27/2015, 30 percent from 01/31/2020); peripheral neuropathy, left lower extremity (20 percent from 01/31/2020); peripheral neuropathy, right lower extremity (20 percent from 01/31/2020); prostate cancer (100 percent from 05/23/2011, 40 percent from 12/01/2011); residuals of prostate cancer to include erectile dysfunction (100 percent from 05/23/2011, 40 percent from 12/01/2011, 20 percent from 02/01/2017). The Board notes that as of December 12, 2013, the Veteran met the combined schedular rating requirement for TDIU as he was at 70 percent for his service-connected disabilities with the single 40 percent rating satisfied by his service connected prostate condition. Although the 40 percent rating for prostate cancer was subsequently reduced to 20 percent rating effective from February 1, 2017, the 40 percent rating was then satisfied by a combination of the ratings for the Veteran's diabetes and the peripheral neuropathy associated with that condition. The Veteran reported in his form VA 21-8940 that was submitted in October 2014 that he has not worked since 2008, when he last worked as a medical technician at a hospital, which included working with patients. Prior to that, he reported that he worked for 31 years at quality control manufacturing plant. The Veteran also reported that he was undergoing treatment for prostate cancer and experienced increasing symptoms associated with his service-connected DM, type II, and increased psychiatric symptoms. However, the Veteran's employer reported that he last worked in August 2012. See, September 2020 NOD. Additionally, the record reflects that the Veteran had stopped working at the time he first filed his TDIU claim on October 14, 2014. The Board finds that the record supports the Veteran's assertions for an effective date of TDIU earlier than January 31, 2020, as it reflects that there are documented complaints with regards to the frequency, severity and functional impact of symptoms associated with some of his service-connected disabilities, earlier than this date, as referenced below. For instance, on October 21, 2011, the Veteran reported having longstanding problems with his mood, including irritability and depression and that he experienced significant ongoing problems with sleeping. A July 2013 treatment record indicated that the Veteran had symptoms of depression, irritability, anxiety, and that he was easily startled. Further, during a September 26, 2013, VA examination, it was noted that the Veteran's service-connected prostate cancer diagnosis and treatment was a contributing factor to his mood swings and depression. A September 2013 treatment note also shows that the Veteran was seen with complaints of difficulty sleeping, also associated with his prostate cancer. The record also reflects a prior notation in a March 2013 treatment record indicating that at that time, the Veteran was experiencing postprostatectomy incontinence and erectile dysfunction, associated with his prostate cancer, which was causing stress incontinence. July 2014 VA records reflect the complaint of bilateral pain in the shoulders, particularly when raising his arms, to the extent that the intensity of his pain frequently keeps him awake at night. Further, that pain from the left shoulder sometimes radiates to the left elbow, and that he has experienced this shoulder pain for many years, but it got particularly worse in the previous year (2013). The Board further notes that a March 2015 VA mental disorders examination report noted that the primary reason the Veteran could not work was due to fatigue and difficulty getting along with others. Given these facts, the Board cannot conceive of an occupation consistent with the Veteran's educational background and work history, which includes five college credits, and his professional experience consisting of over 31 years of quality control and 10 years as a medical technician, where the Veteran's service-connected disabilities would not have been a significant problem in maintaining his employability. Specifically, as medical technician he was required to actively use his hands to input data, and to stay alert to engage with patients and his co-workers in an occupational setting. Additionally, the Veteran's depressed mood and lack of motivation, and fatigue from lack of sleep associated with his prostate cancer, further diminished his ability to obtain or maintain any form of employment. Consequently, the Board finds that when the evidence of record is viewed holistically, and in giving the Veteran the benefit of the doubt, it reflects that the Veteran became incapable of obtaining or sustaining employment on December 12, 2013, when TDIU was raised on the record, which is the earliest date that his TDIU claim can be granted pursuant to 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). Accordingly, based on all of the foregoing, the Board finds that an earlier effective date of December 12, 2013, but not earlier, for the assignment of the Veteran's TDIU is warranted in this case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.