Citation Nr: 21073841 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-50 880 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 13, 2016, is denied. FINDING OF FACT Prior to January 13, 2016, the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining substantially-gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to January 13, 2016, have not been met. 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 from August 1962 to February 1963 and from November 1966 to October 1978, with additional active and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in March 2021 and a transcript of that hearing is of record. The Board briefly clarifies the scope of the claims remaining on appeal. The Board previously remanded the issue of entitlement to a TDIU, as well as the issue of entitlement to service connection for a psychiatric condition, for additional development. See June 2021 Board Decision at 7-11; see also id. at 5-7 (finding new and material evidence to reopen the Veteran's service-connection claim). The record reflects that the RO subsequently granted service connection for a psychiatric condition, as well as entitlement to a TDIU from January 13, 2016. See October 2021 Rating Decision at 1. The RO then issued a supplemental statement of the case (SSOC) addressing the issue of entitlement to a TDIU prior to this date, on which the Veteran has presented additional argument. See October 2021 SSOC; see also November 2021 Appellate Brief. The Board has therefore characterized the Veteran's remaining claim as presented above. Entitlement to a TDIU prior to January 13, 2016. The Board begins by clarifying the basis for a potential effective date for the Veteran's TDIU claim prior to January 13, 2016. The Veteran's formal claim for entitlement to a TDIU was filed in June 2016. See June 2016 VA Form 21-8940. The Board notes that the Veteran has also asserted during this appeal that the combination of his service-connected disabilities, including his psychiatric condition, prevent him from obtaining and maintaining substantially-gainful employment. See March 2021 Transcript at 8. To the extent that the Veteran's claim for service connection for a psychiatric condition could be interpreted as also raising an inferred claim for entitlement to a TDIU, the applicable claim for this condition was filed in January 2016. See January 2016 VA Form 21-526EZ; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The effective date of a claim for an increased disability rating is generally "[the] date of receipt of [the] claim or [the] date entitlement arose, whichever is later." See 38 C.F.R. § 3.400(o)(1) (emphasis added); see also id. at (q)(2) (providing that where new and material evidence has been received to reopen a claim after a final disallowance, the effective date is the "[date] of receipt of [the] new claim or [the] date entitlement arose, whichever is later"). Generally, the Board would therefore conclude that an effective date earlier than that already assigned for the Veteran's TDIU is precluded by the regulations discussed above, because the earliest applicable date of claim is January 13, 2016. However, the record appears to reflect that the Veteran previously asserted an informal claim to a TDIU in July 2001. See November 2021 Appellate Brief at 3; see also July 2001 VA Form 21-4138 (asserting that "I am requesting an increase in my service-connected back condition" and that "I am unable to work because of this") (emphasis added). The RO does not appear to have adjudicated this issue at that time. See February 2002 Rating Decision (addressing only increased rating for lumbar spine condition). The Board notes that under the regulations applicable at that time, an application or claim was defined as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2014) (emphasis added). The Board finds that the Veteran's July 2001 assertion is adequate to constitute an informal claim as to both an increased rating for a spine condition and to a TDIU. Because this issue was not addressed in the February 2002 rating decision, it remained pending at the time of the Court of Appeals for Veterans Claims' (CAVC) decision in Rice. See VAOPGCPREC 07-03 (providing in pertinent part the general rule that "judicial decisions operate retrospectively" and "must be given full retroactive effect in all cases still open on direct review and as to all events") (internal citations omitted); see also Rice, 22 Vet. App. at 453 (providing that "[a] claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating") (internal citation omitted). Because the RO has now addressed this issue in its October 2021 SSOC, it is properly before the Board for appellate adjudication. The Board now turns to the merits of the Veteran's remaining TDIU claim. Because the Veteran did not meet the schedular requirements for entitlement to a TDIU prior to January 13, 2016, the relevant inquiry before the Board is whether referral for extraschedular consideration is warranted. See 38 C.F.R. § 4.16(a) (providing that initial schedular consideration of a TDIU requires a single service-connected disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater); cf. October 2021 Rating Codesheet at 1 (providing that the Veteran was rated as 20 percent disabled from August 1992 and as 40 percent disabled from July 2014); see also 38 C.F.R. § 4.16(b) (providing that the Board "should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards"). Prior to January 13, 2016, the Veteran was service-connected for a spine condition rated as 20 percent disabling from August 1992 and for diabetes mellitus rated as 20 percent disabling from July 2014. See October 2021 Rating Codesheet at 1. The Board notes that the Veteran's assertions as to which of his service-connected disabilities prevent him from working are contradictory, which partially undermines his credibility. See July 2001 VA Form 21-4138 (asserting inability to work due to spine condition); see also June 2016 VA Form 21-8940 at 4 (asserting that "I was missing too much time from work because of my back injury[,] I was using my leave because I ran out of sick days" and that "[my] boss told me I should take early retirement or lose my job"); cf. October 2018 VA Form 9 (asserting that inability to work is due to combination of diabetes, spine, and psychiatric conditions); see also March 2021 Transcript at 7 (asserting in response to questioning that "I really cannot say" how diabetes and spine conditions preclude employment); cf. id. at 8 (asserting in response to further questioning that "those two issues, I believe that my PTSD... like anger, anxiety, prevents me from doing... any kind of job"). The Board also notes that the Veteran is not considered disabled by the Social Security Administration. See March 2021 Transcript at 6 (providing clarification that the Veteran is "receiving Social Security but not disability"); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (providing that "[it] is not the case that [VA] must obtain records in every case in order to rule out their relevance"). The Board therefore finds that remanding this issue to obtain the Veteran's Social Security records is not warranted, because they do not address disability or inability to work and are therefore not relevant to the issue remaining on appeal. The Board is mindful that "[the] sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Board is also mindful that in cases where the Veteran asserts an inability to return to his previous employment, there is no requirement that the VA provide a vocational expert to assess whether other jobs suitable to the Veteran's skills and experience are available in the national economy. Smith v. Shinseki, 647 F.3d 1380, 1383-1384 (Fed. Cir. 2011). 38 C.F.R. § 4.16 "does not require a showing that jobs exist in sufficient numbers in the economy" and "does not require any analysis of the actual opportunities available in the job market[.]" Smith, 647 F.3d at 1385. The Board notes the Veteran's assertions regarding the functional impairment posed by his spine and diabetes condition. See March 2021 Transcript at 7 (asserting that "[if] I'm sitting down or kneeling to put something down, when I'm trying to get up, I have to hold on to something to get up"); see also id. at 8 (asserting that his diabetes condition does not require periodic injections of insulin, but that "sometimes, I have fainting issues, like dizziness and stuff like that"). However, these limitations are not so severe as to preclude all forms of substantially-gainful employment consistent with the Veteran's education and occupational experience. See March 2015 VA Examination Report at 1-2 (noting use of prescribed oral hypoglycemic agent for diabetes treatment, but finding no regulation of activities, hospitalizations, complications, or functional impairment); see also February 2002 VA Examination Report at 1 (noting Veteran's assertion that "the back pain comes when he does something like raking the back yard or pushing the lawn mower[,] or if he fixes his car or changes his car tire"). The record reflects that the Veteran has previously been employed as a materials handler and possesses two years of university education. See June 2016 VA Form 21-8940 at 3-4. The Board finds it more likely than not that the Veteran's spine and diabetes conditions, considered alone, were not so severe as to preclude him from obtaining and maintaining substantially-gainful employment, so long as that employment did not rely on heavy physical labor. In other words, the Veteran's education and remaining physical capacity would still have qualified him for some forms of sedentary and light physical employment. Instead, the evidence of record supports the inference that it is the full combination of the Veteran's current service-connected disabilities, to include his psychiatric condition, that now preclude him from obtaining and maintaining substantially-gainful employment. The Board therefore concludes that referral for extraschedular consideration of entitlement to a TDIU prior to January 13, 2016 is not warranted. 38 C.F.R. § 4.16(b). The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.