Citation Nr: 21007267 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-29 150A DATE: February 9, 2021 ORDER An earlier effective date of July 10, 2003 is granted for a total disability rating based on individual unemployability (TDIU). FINDING OF FACT Since July 10, 2003, the Veteran’s service-connected degenerative disc disease of his lumbar spine (low back disability) and left knee arthritis and internal derangement (left knee disability) have precluded him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when also considering his level of education and prior training and work experience. CONCLUSION OF LAW The criteria have been met for a TDIU effectively since July 10, 2003. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1991 to December 1995. This TDIU claim was previously before the Board of Veterans’ Appeals (Board) in September 2018, and the Board granted an earlier effective date of November 8, 2004 for this benefit since that was the date of the Veteran’s disability retirement. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veteran’s Claims (Veterans Court/CAVC), to the extent it had denied an even earlier effective date for his TDIU. And, in May 2019, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board’s decision denying entitlement to a TDIU prior to November 8, 2004 and remanding this remaining component of the claim back to the Board for readjudication in compliance with agreement in the JMPR. The Board resultantly issued another decision in September 2019, again denying an effective date prior to November 8, 2004 for the TDIU. The Board determined the Veteran was employed in a full-time position until that date. The Veteran again appealed the Board’s decision to the higher CAVC and, in August 2020, the CAVC granted a Joint Motion for Remand (JMR), again vacating the Board’s decision and again remanding this remaining portion of the claim back to the Board for readjudication. In granting the August 2020 JMR, the CAVC agreed that the Board had erred in its decision in failing to adequately discuss evidence that is potentially favorable to the Veteran’s argument that he is entitled to an earlier effective date of July 10, 2003, for his TDIU award. In this additional decision, the Board is granting an earlier effective date for the TDIU back to that prior point in time.   An earlier effective date of July 10, 2003 is granted for the TDIU In general, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A TDIU claim is a claim for increased compensation, so the effective date rules for an increased compensation claim apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award for increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date VA received the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110 (b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). 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 – provided that, if there is just one service-connected disability, it is ratable at 60 percent or more or, if there are two or more service-connected disabilities, at least one is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).   For purposes of determining whether those threshold minimum rating requirements are met, disabilities stemming from common etiology or arising from single accident or affecting both upper extremities or both lower extremities or involving a single bodily system are considered as one, collective or aggregate disability. 38 C.F.R. § 4.16(a). The Veteran’s claim of entitlement to a TDIU arose out of his January 9, 2003 claim for an increased rating for his service-connected left knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU is part and parcel, so derivative, of an increased-rating claim when raised expressly or implicitly by the record, including when a Veteran alleges that the disability for which he is requesting a higher rating also is at least one of the disabilities rendering him unemployable). The RO granted a TDIU effective May 9, 2007, but, as already alluded to, in a September 2018 decision since issued the Board granted an earlier effective date of November 8, 2004 for the TDIU – on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b) (following the required referral to the Director of the Compensation Service for initial consideration of this), since that was the date of the Veteran’s disability retirement. The Veteran since has continued to assert that he is entitled to an even earlier effective date back to July 10, 2003 for his TDIU since that is when he became too disabled to work in any substantially gainful capacity and, consequently, had to retire from his job owing to his service-connected disability. In a November 4, 2008 letter from the Office of Personnel Management (OPM), the Veteran was informed that his application for disability retirement had been approved. He was also informed that a formal separation from his employer would be initiated. In July 2007, Social Security Administration (SSA) records revealed that a determination had been made by SSA’s Office of Disability Adjudication and Review that the Veteran’s knee and low back disabilities had prevented him from gaining and maintaining substantially employment since July 10, 2003.   Furthermore, SSA determined that his disabilities prevented him from performing past relevant work as a mail carrier and he was unable to tolerate the prolonged sitting required of even sedentary work. While SSA determinations are not binding on this VA Board, since the two Federal agencies have different eligibility requirements, they are, however, relevant. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while an SSA decision is not controlling for purposes of VA adjudication, it is “pertinent” to a Veteran's claim); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In an August 2007 Request for Employment Information in Connection with Claim for Disability (on VA Form 21-4192), the Veteran’s previous employer indicated the Veteran’s last day of work was July 10, 2003; however, he did not separate from his employer until November 8, 2004 (hence, the reason the latter date is listed as when he retired owing to medical disability). The Board thus concludes that an earlier effective date of July 10, 2003 is warranted for the Veteran’s TDIU since, for all intents and purposes, he has not in actuality been substantially gainfully employed since that earlier date. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.