Citation Nr: 21007658 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 98-15 982 DATE: February 10, 2021 ORDER Entitlement to an effective date of January 3, 2007, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Beginning January 3, 2007, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU were met effective January 3, 2007. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to July 1977. Historically, the Veteran submitted a non-initial increased rating claim for the back disability, which was denied in the May 1998 rating decision. That issue remained on appeal until final adjudication by the Board in October 2017. The issue of entitlement to TDIU is part and parcel of the increased rating claim for the back disability. Thus, the appellate period for the TDIU began in October 1996. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the case was remanded for extraschedular TDIU consideration for the period prior to December 9, 2015. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Entitlement to extraschedular TDIU has been initially denied in a November 2020 advisory opinion by the Compensation Service director. The Veteran submitted a copy of his Member Work History from his Laborers’ Union. It contains a work history for the Veteran from March 2001 to January 2007. It shows that the Veteran last worked as a journeyman on January 2, 2007. See November 2020 Member Work History. The Veteran states on his June 2020 VA Form 21-8940 that his last date of fulltime employment was in January 2005, and that he became too disabled to work in January 2005. See June 2020 VA Form 21-8940. However, the Board finds that the objective evidence of record, namely his Member Work History, shows he continued to work as a journeyman well after that date and up until January 2, 2007. As such, the Board finds that the Veteran’s last date of physical employment was January 2, 2007. The record contains two private opinions during the period on appeal that state that the Veteran in unable to work due to his service-connected back disability. Specifically, a September 2014 private treatment record from Dr. T.D.E., a neurologist. Dr. T.D.E. reported the Veteran had severe back pain and was unable to work. See September 2014 Dr. T.D.E. treatment record. Additionally, the Veteran submitted a March 2015 letter from Dr. A.R.S., a physician, that concluded the Veteran’s lumbar spine disability and heart disabilities render the Veteran 100 percent disabled and incapable of working in any meaningful capacity. Dr. A.R.S. also noted that the Veteran was prescribed pain medication that precluded him from any employment. See March 2015 Dr. A.R.S letter. Throughout the period on appeal, the Veteran has maintained that his back disability kept him from working gainfully. A few examples of such include a statement in July 2005 that he was unemployed due to pain. See July 2005 VA examination report. Subsequently, he reported that his back makes it impossible to work at all. See February 2010 VA examination report. He further stated that his back pain prohibited him from doing strenuous work. See June 2011 VA treatment record. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given that the record reflects the Veteran’s last date of physical employment was January 2, 2007, the Board finds that entitlement to TDIU shall begin the day thereafter—January 3, 2007, but no earlier. The Board finds that the Veteran has consistently and credibly reported that his back pain his inhibited him from working. Further, two medical doctors have stated that the Veteran’s back disability renders him unemployable. (Continued on the next page)   Therefore, the Board finds the totality of the evidence of record indicates it was factually ascertainable the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities effective January 3, 2007, the first date that the record reflects he was no longer employed. Accordingly, given the totality of the evidence, the Board finds the criteria for an effective date of January 3, 2007, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.