Citation Nr: 21006565 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 06-18 530 DATE: February 4, 2021 ORDER An effective date of February 8, 2006, but no earlier, for entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Beginning February 8, 2006, the Veteran’s service-connected disabilities prevented him from obtaining and/or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier of February 8, 2006, for a grant of a TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1969 to November 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously remanded by the Board in October 2016 and July 2020. Pertinent Laws and Regulations - TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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.” 38 C.F.R. §§ 3.340 (a)(1). Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). TDIU 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 a single service-connected disability rated at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is rated at 40 percent or more and remaining service-connected disabilities result in a combined rating of 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran met the schedular criteria for a TDIU on December 20, 2004, as the combined rating was 80 percent. Consideration may be given to a veteran’s education, training, and special work experience, but not to her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability has occurred within one year from the date of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Discussion Here, the initial claim was filed July 8, 2004, with the Veteran’s first VA Form 21-8940, Application for Increased Compensation based on Unemployability. The RO denied the claim in November 2004 because the Veteran was employed. A second VA Form 21-8940 was filed on August 23, 2005. In March 2006, the RO denied the claim, noting again the Veteran was employed and the VA examination indicated he could complete sedentary employment; the Veteran timely filed a notice of disagreement in response. Ultimately, the Veteran was granted entitlement to a TDIU, with an effective date of November 28, 2007. The RO noted the VA examiner found limitations such as prolonged standing, walking, climbing, squatting, bending, stooping, repetitive tasks with his hands and problems with concentration due to recurrent headaches, which impacted his possible employment. The effective date was the date of the examination which showed evidence permitting a grant of the benefit. In his April 2008 notice of disagreement, the Veteran contended that the effective date for his TDIU should be February 2006. See Notice of Disagreement, dated April 3, 2008. After careful consideration of the record, to include both the lay and medical evidence, the Board finds the limitations which prompted the award of a TDIU were substantially the same as those when he lost employment, and therefore he was unemployable by reason of his service-connected disabilities for the period on appeal beginning February 8, 2006. According to his July 2004 VA Form 21-8940, the Veteran was employed as a metal operator for 3 months in the year 2000; a fork lift operator from January 2001 to April 2001; a mess attendant at Sheppard Air Force Base (AFB) from October 2003 to April 2004; and, as a security guard at Sheppard AFB from March 2004 to “present.” See VA Form 21-8940, dated July 8, 2004. In addition, the Veteran reported he was self-employed as salesman until February 2006. See VA Treatment Record, dated November 28, 2007. Turning to the evidence, a January 2006 VA examination was conducted to evaluate the Veteran’s employability. The Veteran reported no issues with managing his diabetes mellitus. He reported a constant aching pain in the low back which was aggravated by staying in one position to long. The Veteran reported he was limited in lifting more than 25 pounds; he could sit for one hour comfortably, stand for 30 minutes, and walk 300 yards; could drive but must stop to stand once every hour. The examiner opined his limitations at work and home are activities that require prolonged walking, standing, or lifting. The examiner noted the Veteran had been diagnosed with cervical degenerative disc disease, which had resulted in left upper extremity radicular pain, but at the present time he had no complaints regarding his cervical spine. Regarding left upper extremity radicular pain, the Veteran endorsed sensory loss in the left hand involving the thumb, index, and long finger, but no other functional loss. The Veteran reported his bilateral hand pain was aggravated by prolonged gripping and repetitive movement, as well as cold exposure. The Veteran reported no swelling or limitation of motion and no limitations at work but did state he had difficulty with tasks at home which required gripping. The Veteran reported his bilateral shoulder disability was more severe on the left than right and that the pain was intermittent and precipitated by working or trying to work overhead and elevating his upper extremities. The examiner indicated the Veteran had limitation of motion secondary to pain and therefore could not work overhead or lift more than 25 pounds. The examiner noted he had a long history of limitation of motion in the right knee, with constant pain and chronic swelling. The examiner noted had limitation in weightbearing and avoids walking stairs and cannot kneel or squat. The left knee was reported as similar but less severe. The bilateral feet were symptomatic with pain primarily in the heel with weightbearing. The examiner noted the Veteran did not describe his headaches. When asked why he was claiming unemployability, he stated it was hard to work secondary to symptoms in his low back, shoulders, knees, and feet. The Veteran felt his occupation could be some type of desk job, and he felt like if this could be found he could tolerate desk work. It was the examiners opinion that the Veteran could perform sedentary type of work. In a June 2006 private pain management consultation, the Veteran reported his low back pain and pain in his legs had been ongoing for many years and was progressive in nature; the pain was concentrated in the low back; his legs felt like they go to sleep and want to give out on him at times; and the pain is constant, described as aching and throbbing, with numbness, tingling, and “crawling” sensations. The physician noted the pain limited all activities, all the time, and limited his sleep seven nights per week. The Veteran also reported pain in his hands, knees, and feet, which could become severe. See Private Pain Management Consultation, dated June 15, 2006. A VA examination was performed in July 2006 to evaluate the severity of the Veteran’s low back disability, headaches, and left foot disability. The Veteran reported that since January the pain had become worse; that the pain was constant; was aggravated by remaining in one position too long; he could not sit comfortably for more than one hour; he could not bend and now must sit instead; could not stand for more than 30 minutes; he could drive for one hour but must stop and stretch; that his pain has limited his ability to walk more than 25 to 50 yards before he must stop and rest; and that the pain causes him to wake approximately every three hours to sit up. He noted he used a back brace if he completed any strenuous activity and that he intermittently used a walker to get himself to the out of bed and to the shower. The Veteran reported his headaches were in the back of his neck and head; that his headaches usually occurred in the morning and in the afternoon; and that he gets at least two headaches per day which last from one to two hours with occasional nausea and photophobia. Generally, he continued to function but that must lie down if the headache was severe. The Veteran reported that his bilateral foot pain had become worse. In his left foot, he had heel pain with weightbearing; he had a burning, painful sensation in the arch of his foot; and he also had pain and numbness in his toes, especially the great toe. He stated his foot pain limited his ability to walk but he is more limited by his knees and back. He had received injections in his heels that were ineffective. In May 2007, the Veteran testified at his hearing that his IHD causes pressure and pain over the heart area, that he has dyspnea and gets tired very quickly. Regarding his left knee, he stated he had trouble lifting, walking, and navigating stairs, and he had pain and instability. See Hearing Transcript, dated May 2, 2007, page 7, 8. In June 2007, the Veteran was evaluated for participation in VA vocational rehabilitation program. In the report, the rehabilitation counselor noted that the Veteran’s disabilities were all considered degenerative and were fully expected to worsen and that his disabilities were interfering with his activities of daily living and his physical limitations are serious. See Counseling Record Narrative Report, dated May 31, 2007. In July 2007, the Veteran underwent an examination to determine the severity of his diabetes mellitus type II, IHD, and left knee disability. The physician noted that the Veteran’s activities were not restricted due to his diabetes mellitus and that his condition was stable. In the report, the examiner noted the Veteran reported decreased sensation in the thumb, index, and long finger of his left hand; intermittent numbness in his anterior thighs and great toes; and intermittent feeling that his skin was “crawling” in his legs and back. The Veteran reported that his IHD causes dyspnea on exertion and fatigue after walking one block and he avoids any strenuous activities. Regarding his left knee, the Veteran reported pain on weightbearing, or when he was walking, climbing, running, or prolonged standing and he was unable to kneel or squat. He stated that with cold weather he will use a walker for ambulation. Another VA examination was conducted in November 2007 to evaluate the Veteran’s employability. In regard to his diabetes mellitus type II, the Veteran stated he did not have episodes of hypoglycemia. The Veteran reported his IHD remained the same, but he felt the fatigue was worse. Regarding his left knee, he reported the pain was now constant and was worse with walking, climbing, running, or prolonged standing, and he had pain at rest. He also stated he used a walker daily. He reported his low back pain had progressively worsened; that he was limited in lifting more than 25 pounds; could not sit comfortably for more than one hour or stand for more than 30 minutes; could not walk longer than one block; could drive but must get out of the car every hour; he avoided strenuous activity; and he was unable to bend and must sit down to certain complete activities. The Veteran reported he continued to have headaches and his symptoms remained the same. He stated his bilateral foot pain was concentrated in the MTP joint of his great toe had progressively worsened, and he continued to have numbness. The Veteran now reported constant neck pain with radiation down both arms and the pain became worse from laying on his side. Regarding his left upper extremity radiculopathy, the Veteran reported that his arms went numb and he dropped items easily and had difficulty picking things up. He reported that the shoulder pain was now constant and made worse by laying on his side. The Veteran reported the right knee pain was now constant and made worse with any movement, that he experienced constant swelling, and that the knee gives way. He had limited weightbearing due to his knees, back, and was limited in walking stairs, squatting, kneeling. The bilateral hand pain was aggravated by prolonged gripping and repetitive movement and was still limited with activities that required increased gripping. The Veteran reported that, in general, the more repetitive tasks he completed the more painful, fatigued, and weak his joints felt. The examiner found his functional limitations related to employment would be any prolonged standing, walking, climbing, squatting, bending, or stooping and would be limited in repetitive tasks with the hands; and would have difficulty concentrating due to his headaches lasting two hours. In light of the evidence, the Board finds that an earlier effective date is warranted for a TDIU. As noted above, the Veteran was granted a TDIU effective November 28, 2007, based on the VA examination and report. The Board notes that the differences between the January 2006 and November 2007 VA examinations and reports were minimal, and the evidence supports the Veteran’s claim that he was unable to secure substantial gainful employment. The January 2006 and November 2007 VA examinations both included limitations with weightbearing, walking stairs, kneeling or squatting, could not work overhead or lift more than 25 pounds, prolonged walking, standing, or lifting, and issues with gripping. Additionally, in the July 2006 and July 2007 VA examinations, the Veteran relayed similar complaints, with more detailed descriptions of his symptomatology, including his headaches which occurred twice per day and lasted for hours. Furthermore, the Veteran’s June 2006 private treatment record indicated his pain had been ongoing for years, limited all activities, and interrupted sleep. As such, the Board resolves doubt in the Veteran’s favor in finding that he was unable to obtain or maintain substantially gainful employment beginning February 8, 2006. Therefore, the Veteran’s claim for an earlier effective date for a TDIU claim is granted. 38 C.F.R. § 4.16. The Board finds that an effective date prior to February 8, 2006 for a TDIU is not warranted as the evidence indicates that the Veteran was employed full-time for the period from October 7, 2003 to February 7, 2006. See Faust v. West, 13 Vet. App. 342 (2000) (where a claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, “actual employability”). The Veteran’s employer indicated the Veteran was employed from October 7, 2003 to May 24, 2004, and his payroll records indicated he worked between 31.5 hours and 40 hours per week. His security guard employer submitted information that he was employed full-time from March 22, 2004 until February 7, 2006. While the Veteran was provided an accommodation related to his service-connected disabilities, the Board finds his employment was not protected employment, as the employer merely provided the Veteran an accommodation, and the Veteran was still required to perform duties and work full-time. The Veteran was previously awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(k) effective January 12, 2006. However, VA has a duty to maximize benefits and therefore must consider whether an award of TDIU based on a single disability is warranted, for the sole purpose of determining eligibility to SMC at the housebound rate under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The Board finds that the assignment of a TDIU based on a single disability alone is not warranted. Notably, the Veteran has not claimed that he is unemployable due to a single service-connected disability. The Board further finds that the evidence of record, to include the medical evidence discussed above, fails to demonstrate that one service-connected disability alone renders the Veteran unable to maintain substantially gainful employment. Thus, an award of a TDIU is unavailable such that the Veteran would be afforded SMC at the housebound rate. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.