Citation Nr: 21075949 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 19-03 402 DATE: December 22, 2021 REMANDED Entitlement to an effective date earlier than December 1, 2015, for the award of a total disability rating based upon individual unemployability is remanded. REFERRED The issue of service connection for a neck disability was raised in a February 2015 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty from August 1952 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in September 2019 denied the Veteran's claim of an effective date earlier than December 1, 2015, for the award of a total disability rating based upon individual unemployability (TDIU). The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2020, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. The Board notes there was a separate appeal as to the issues of service connection for left and right shoulder disabilities. Following a Board remand of those issues in March 2020, an October 2020 Supplemental Statement of the Case was issued. Later in October 2020, the Veteran filed a VA Form 20-995 as to the shoulder issues opting those issues into the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) system requesting a Supplemental Claim. The requested Supplemental Claim was issued in December 2020. The Veteran disagreed with that decision and elected to pursue a Higher Level Review. In December 2021 a Higher Level Review decision was issued. Given the October 2020 opt-in of the should issues to the AMA system and the request for a Supplemental Claim, the Board no longer has jurisdiction of these issues. Entitlement to an effective date earlier than December 1, 2015, for the award of a total disability rating based upon individual unemployability is remanded. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration for the period prior to December 1, 2015. The Veteran appeals the effective date of December 1, 2015, for the award of a TDIU in the June 2016 rating decision. The effective date of December 1, 2015 is the date of the claim of service connection for an acquired psychiatric disability. The appropriate period under review is important to address, although the Board does not decide the issue herein. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, the claim of a higher rating was not on appeal before the Board at any time. Claims for a higher rating for service-connected asthma and service-connected low back disability were before the AOJ based on a January 2015 informal claim. They were adjudicated in July 2015. Thus, a TDIU was likely at issue under Rice only beginning January 21, 2015, the date of the informal claim for an increase. See also Harper v. Wilkie, 30 Vet. App. 356 (2018). Nonetheless, a standalone claim for a TDIU may be a basis for an earlier effective date. In that regard, it appears that the first date a claim for a TDIU was received by VA was also January 21, 2015. On that day, the Veteran contacted VA via telephone to state that he would like to file a claim for Individual Unemployability (IU) due to his back. As to the substantive issue, prior to December 1, 2015, the Veteran had the following service-connected disabilities: asthma (rated 30 percent from April 2008); hearing loss (rated 20 percent from July 2007); a lumbar spine disability (rated 20 percent from April 2008); and lower lip leukoplakia residuals (rated 10 percent from April 2008). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if there is a reasonable possibility that he was unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In a May 2015 VA examination, the Veteran reported difficulty with prolonged standing, bending and stooping. Forward flexion ended at 40 degrees. Right and left lateral flexion and rotation were limited to 5 degrees. The Veteran had a stooped posture with antalgic gait and the use of a cane. The examiner found the Veteran could perform only light physical and sedentary tasks due to his diagnosis. As far back as an August 2012 VA examination, the Veteran was shown to be limited by pain inactivities such as prolonged sitting, standing, walking, repetitive bending and heavy lifting. According to his November 2021 VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and an accompanying affidavit, the Veteran has not worked since September 1991. His occupational experience consisted of work as an exterminator for many years. By 1986, his back condition progressed to where he was being used as a trainer. His highest level of eduction is eighth grade and he does not know how to use a computer, according to his affidavit. He was awarded non-service connected pension and Social Security Administration disability benefits near the time he stopped working. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: 1. Allow the Veteran 30 days to submit evidence and argument in response to the Board's proposed position regarding the appeal period in this remand. 2. Following the 30 days, refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration for the period prior to December 1, 2015, consistent with this remand and any evidence and argument submitted by the Veteran, particularly with respect to the period on appeal. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.