Citation Nr: 21072552 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 08-12 932 DATE: December 3, 2021 ORDER Entitlement to an earlier effective date of December 1, 2008 for the grant of a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment since December 1, 2008. CONCLUSION OF LAW The criteria for entitlement to a TDIU beginning December 1, 2008 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1990 to September 1991. This matter comes before the Board of Veterans' Appeals on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, January 2018, February 2019, May 2020, and August 2021, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development, and it has since returned for final adjudication. As part of the recent August 2021 remand, the Board instructed the AOJ to obtain a retrospective opinion on whether entitlement to a TDIU prior to January 1, 2017 was warranted. The Board finds that there has been substantial compliance with the remand directives as a retrospective VA medical opinion was obtained in October 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Earlier Effective Date for a TDIU By way of background, a March 2019 rating decision granted entitlement to a TDIU effective January 1, 2017. In assigning the effective date of January 1, 2017, the RO explained that this was the date where the Veteran did not have any form of employment. The Veteran asserts that he was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities as early as December 1, 2008, the date when he stopped working because of his service-connected disabilities. See June 2021 Third Party Correspondence. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. When it comes to entitlement to a TDIU, the issue may arise as part and parcel of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the December 2015 Board remand noted that entitlement to a TDIU was raised as part of the higher rating claims that originated from the April 2007 rating decision. Id. Thus, the question on appeal is whether the Veteran is entitled to an effective date earlier than January 1, 2017 for the award of a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). Since June 19, 2007, the Veteran met the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected residuals of compartment syndrome of the right leg, limitation of motion of the right ankle, low back disability, chronic right hip strain, decreased sensation of the superficial peroneal nerve of the right leg, and scars of the right leg. 38 C.F.R. § 4.16(a). He was service-connected for adjustment disorder with depression and anxiety effective February 25, 2009. Military personnel records reflect the Veteran's military occupation specialty (MOS)/rating was that of a Basic Marine. On his December 2007 application for unemployability he reported all his service-connected disabilities prevented him from following a substantially gainful occupation. The Veteran reported completing 2 years of college. He reported last working full time on February 10, 2007. On his December 2013 application, he reported becoming too disabled to work on December 15, 2008. On his March 2018 application, he reported last working full time on June 15, 2009. He also indicated briefly working in 2016, and on a June 2020 statement, explained that he attempted to work from May 2016 to October 2016. In an August 2008 VA 21-4192 Request for Employment Information in Connection with Claim for Disability, it was noted that the Veteran worked as a part time sales associate from August 2006 to February 2007. The reason for termination was because he accepted another job. The Veteran presented for a VA examination in February 2007 for his right leg and right peroneal nerve disabilities. He reported being able to stand for 15 to 30 minutes and walk to more than 1/4 of a mile but less than 1 mile. The examiner made note that the Veteran was told not to work due to his current hip and back condition. At this point, the Veteran was not service-connected for his hip and back. The Veteran underwent a right hip examination in August 2007. When asked to describe the functional impact of the Veteran's right hip disability, the examiner reported that the Veteran must lay on the floor and stop ambulatory activities and become sedentary due to hip pain. The Veteran also had a back examination in August 2007 where he reported having constant pain that radiates upwards into the lower thoracic spine and bilaterally to low back muscles. When asked to describe the functional impact of his back disability, the examiner reported that during flare-ups, the Veteran is not confined to bedrest but may lay on the floor for an extended period of time to reduce pain. Regarding his unemployment, the Veteran reported that he was told by his treating physician that he should not work due to his hip and back conditions. The Veteran was afforded a VA examination in November 2008 for his right hip, low back, and right peroneal nerve. His employment history included working as a salesclerk for 5 months, professional scuba diver for 2 months, and owning a transportation business for 8 years which mostly required him to sit. He reported he was last employed in February 2007 and stopped working due to pain from service connected conditions. When asked to describe the functional impact the Veteran's right hip disability has on his ability to work the examiner reported that the Veteran's right hip currently affects prolonged sitting, standing, and walking due to pain. The examiner noted that sedentary activity is feasible but only with frequent changes in positioning. With functional impact of his back disability, the examiner noted that Veteran cannot lift heavy equipment, engage in prolonged weightbearing, or use computer for extended periods of time due to back pain. Thus, the examiner opined the sedentary employment would be difficult for the Veteran. With functional impact of the right peroneal nerve, the examiner noted that residuals of his surgery affected employability with weight bearing activity, but sedentary employment was feasible. The examiner noted that the Veteran should not be working at heights, on stairs, or on ladders due to potential falls. The Veteran presented for a VA mental examination in June 2009 to assess the current severity of his service-connected psychiatric disorder. The Veteran reported that he went into business with his father and while the business was successful for a period of time, they eventually had a disagreement regarding profits and ended up closing the business. He also reported that he has been unemployed due to his physical conditions. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner further noted that the Veteran would be capable of gainful employment that is appropriate to his physical abilities and vocational skills. The Veteran may have some residual reduction in reliability or productivity due to his psychiatric disorder, but medication may alleviate such issues. The Veteran was also assessed for his right peroneal nerve in June 2009. The Veteran reported that he has numbness that has worsened. The examiner opined that the Veteran is able to perform sedentary employment though working at heights, stairs, or ladders are not recommended. The Veteran's right ankle disability was also examined in June 2009 where he reported having a constant dull ache and constantly using a brace when awake. The examiner opined that the Veteran's right ankle affects weight bearing activities and he should avoid working at heights or climbing stairs and ladders. The examiner noted that the Veteran could perform sedentary employment. The Veteran was afforded a low back examination in January 2010. The Veteran reported constant pain throughout his lumbar spine, with pain worse at night. He reported that he could afford to live on VA benefits, so he did not work. His back pain resulted in pain when sleeping, difficulty changing positions, and he reported using a stationary bike and different work out equipment to avoid excessive heavy lifting. He participated in scuba diving. The Veteran presented for a VA mental examination in February 2012. The examiner noted that the Veteran does not have a mental disorder diagnosis. The Veteran reported taking college courses and owned a transportation business with other family members until it dissolved in 2007. He indicated that he planned on taking advanced training in scuba instruction and to seek a job as a scuba instructor. In an August 2012 VA examination for his right ankle, he reported having more stiffness without any pain. He was unable to participate in most sports and had stopped many recreational activities such as hiking, rock climbing, backpacking, and his exercise program of lifting weights and running. He avoided chores that require ladders. Functional loss included less movement than normal, weakened movement, and disturbance of locomotion. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported that the Veteran has not worked since the loss of his self-owned transportation company in 2007, and his work limitations include avoiding stairs, ladders, and heavy lifting. In an August 2012 VA examination for his right peroneal nerve, the Veteran reported that due to the loss of sensation on his right leg, he has to be careful not to hit his shin or cut his leg because he cannot feel much. He had mild paresthesias and/or dysesthesias, and moderate numbness. Sensation testing for light touch showed decreased finding for lower leg/ankle and foot/toes. The examiner opined that there was no functional impact of the right peroneal nerve. The Veteran presented for a VA examination in April 2014 for his right ankle. He reported that his right ankle has been stiff especially in the morning. He did not report flare-ups but had pain on flexion and extension. Functional loss includes less movement than normal. The examiner opined that his right ankle condition did not impact his ability to work. The examiner noted that the Veteran owned a transportation company from 1997 to 2008 which was dissolved due to the economy. He is currently not working and not looking for employment because he did not want to be around people. He reported being unable to climb ladders or lift anything heavy. The Veteran's back was examined in April 2014 where he reported continuing to have low back pain when he bends down. The examiner noted that the Veteran has functional loss manifesting in less movement than normal, pain on movement, and pain only with bending forward. The examiner opined that his low back disability does not cause functional impairment that is attributable to his ability to perform physical and sedentary type employment. The Veteran's right hip was examined in April 2014 where the Veteran reported having pain for many years without any information of its cause. The examiner opined that his right hip disability does not cause functional impairment that is attributable to his ability to perform physical and sedentary type employment. The Veteran's right leg was examined in April 2014 where it was noted that the Veteran had decrease strength in his right leg. The examiner opined that there was no evidence of weakness of the right leg or atrophy of the right calf or ankle. The examiner further opined that his right leg did not impact his ability to work. The Veteran's right peroneal nerve was examined in April 2014 and the examiner opined that his history of decreased sensation of the superficial peroneal nerve does not cause functional impairment attributable to his ability to perform physical and sedentary employment. In November 2016, the Veteran submitted a private vocational opinion by vocational consultant K.P. Vocational consultant K.P. opined that it is more likely than not that the Veteran is unemployable as a result of his service connected disabilities after he stopped working in 2008. In the opinion, vocational consultant K.P. noted that the Veteran has not worked since 2008 when he closed a transportation company, a business he had owned from 1998 to 2008. During the interview, the Veteran noted that he left work because of his inability to sit or stand for long periods, difficulty lifting heavy weights, and his lack of desire to be around people. The Veteran reported that he can only stand for 15 to 20 minutes due to hip and leg pain, sit for a maximum of 20 minutes due to his back, and has to constantly change position throughout the day. He also reported that he has anxiety symptoms during social situations, struggles to socialize with others, spends most time indoors in his bedroom, prefers to be reclusive, and primarily stand in his bedroom alternating between sitting, walking, and lying down throughout the day. After reviewing the records and conducting an interview, vocational consultant K.P. opined that the Veteran's service-connected disabilities would cause the Veteran to be unable to attend the most basic requirements of unskilled work at any physical demand level. The Veteran would need to alternate between sitting and standing every 15 to 20 minutes which would impact his ability to remain on task and be productive. The Veteran's physical pain and anxiety symptoms would result in an unreliable employee who would be expected to arrive late, leave early, or be absent more than one day per month, which would not be tolerated in a competitive employment. In September 2021, a retrospective VA medical opinion was obtained from an examiner who reviewed the record. In the opinion, the examiner noted that the record indicates that the Veteran sold his business and stopped working due to a financial dispute with his father instead of his inability to work. The examiner noted that there were reports of the Veteran able to perform sedentary employment during the November 2008 and June 2009 examinations. The examiner further noted that the Veteran's mental condition appeared to have been in remission in May 2010 with decreasing symptoms. The examiner noted that the Veteran was able to complete a scuba training in May 2011 which does not does not strike the examiner as a Veteran who has physical limitations to work. The examiner also questioned how the Veteran was clearly unemployable from December 2013 to April 2016 and then suddenly become employable from May 2016 to October 2016. Overall, the examiner opined that the record reviewed does not support a TDIU in this Veteran for the period prior to January 1, 2017 due to his physical condition. The examiner explained that his discussion regarding the Veteran's mental capacity is based on the record as he was not qualified to opine regarding the Veteran's mental health beyond what was in the record. Treatment records are not in significant conflict with findings during VA examination. An attempt to obtain any Social Security Administration medical records resulted in a negative finding. Taken as a whole, the Veteran's symptoms do suggest he was unable to obtain and maintain employment prior to January 1, 2017. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does consider this level of impairment as one that would preclude employment. In consideration of the evidence against the claim, the Board acknowledges that the Veteran has had various employment such as working as a salesclerk, professional scuba diver, and owning a transportation business until 2008. His history as a business owner is significant as it entails that the Veteran may possess supervisory and business skills that may transfer to other employment areas, and he appears to have skills to perform sedentary employment. Further, there have been various reasons, as noted above regarding the Veteran's departure from his business venture such as a disagreement with his father, impact of the economy, and being unable to work due to his service-connected conditions. Further, there have been medical evidence suggesting that the Veteran's service-connected disabilities may not prevent him from obtaining and maintaining employment. See April 2014, September 2021 VA Examination Reports. Even with these facts in mind, the Board takes into consideration the positive evidence supporting the Veteran's claim for a TDIU. In the November 2008 VA examination, the examiner opined that the Veteran's right hip would affect prolonged sitting, standing, and walking due to pain, though sedentary activity is permissible but only with frequent changes in position. The examiner further opined that the Veteran's back disability would impact his ability to lift heavy equipment, engage in prolonged weightbearing, and use computer for extended periods of time due to back pain leading to difficulty with any sedentary employment. The Veteran's right ankle and right peroneal nerve would impact his ability to work in heights, and he should avoid stairs, ladders, and heavy lifting. See June 2009, August 2012 VA Examination Reports. Finally, the Board gives great probative weight to the November 2016 private vocational opinion by vocational consultant K.P., who had reviewed the record and interviewed the Veteran, and determined that is more likely than not that the Veteran is unemployable as a result of his service connected disabilities after he stopped working in 2008. Notably, vocational consultant K.P. made note of the mental and physical limitations the Veteran would have when it comes to his ability to obtain and maintain employment. With respect to sedentary employment, vocational consultant K.P.'s opinion explained that while the Veteran may attempt to work sitting down, he would have to alternate by standing and sitting every 15 to 20 minutes which would detrimentally impact his ability to be productive in the workplace. This finding is supported by other evidence of record which find that the Veteran has to frequently change his sitting position because of back pain. Overall, as explained above, the evidence for or against the Veteran's claim for entitlement to an earlier effective date for the award of a TDIU appear equal in measure as there is indication that the Veteran may and may not have been able to obtain and maintain employment prior to January 1, 2017. When it comes to VA benefits, any doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The evidence in favor of and against the claim is relatively equal in this case. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran was entitled to a TDIU earlier than the current effective date of January 1, 2017. In his June 2021 substantive brief, the Veteran's attorney asserts that while the Veteran met schedular requirements on June 19, 2007 for entitlement to a TDIU, he stopped working by December 1, 2008. The Board agrees. Notably, in the Veteran's own submission of the November 2016 opinion by vocational consultant K.P., it was noted that the Veteran had stopped working in 2008 after selling his business. As this claim was raised as part of a claim for an increased rating and the probative evidence shows that the Veteran qualified for a TDIU at that point, the Board finds that entitlement to a TDIU is granted effective December 1, 2008, the date the Veteran stopped working. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Since the Veteran reported working during the period prior to December 1, 2008, a period when the Veteran still owned his business, TDIU is not warranted for that period. (Continued on the next page) The Board acknowledges the Veteran's report in his application and during examinations where it was reported that the Veteran had stopped working in February 2007. However, this appears to be related to his work as a part time sales associate that ended in February 2007. See August 2008 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. Further, with regards to his brief employment in 2016, this appears to have been a brief attempt for the Veteran to return to work from May 2016 and October 2016, and did not lead the Veteran to obtain and maintain such employment. See June 2020 Statement in Support of Claim. Therefore, the probative evidence supports an effective date of December 1, 2008, but no earlier, for the award of a TDIU. See 38 C.F.R. § 3.400(o)(2). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.