Citation Nr: 21007923 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 08-11 270 DATE: February 11, 2021 ORDER Entitlement to an effective date of December 23, 2005 for the award of a total disability rating due to individual unemployability (TDIU) is granted. Entitlement to an effective date of December 23, 2005 for Dependents Educational Assistance (DEA) is granted. FINDINGS OF FACT 1. From the day after separation from service on December 23, 2005, the Veteran is reasonably shown to be unable to secure or follow a substantial gainful occupation due to her service-connected disabilities. 2. Because the Veteran qualifies for a TDIU rating effective December 23, 2005, she also qualifies for DEA benefits effective this date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 23, 2005 for the award of a total disability rating due to individual unemployability have been met. 38 U.S.C. §§ 1155, 5103A, 5100, 5107; 38 C.F.R. §§ 3.340, 3.400, 4.16. 2. The criteria for an effective date of December 23, 2005 for the award of Dependents Educational Assistance (DEA) benefits have been met. 38 U.S.C. § 5103, 5107, 5110; 38 C.F.R. § 3.141, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 25, 2003 to December 22, 2005. This matter is on appeal before the Board of Veterans Appeals (Board) from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to TDIU and DEA benefits effective December 7, 2015. The Veteran appealed the effective dates assigned. In May 2017, May 2018 and March 2019, the Board remanded the appeal. In a January 2020 decision, the Board granted an earlier effective date of August 7, 2014 for the awards of TDIU and DEA benefits, remanded the claim for an effective date earlier than August 7, 2014 for TDIU to be addressed on an extraschedular basis and remanded the claim for DEA benefits as inextricably intertwined. In November 2020, the Director of the VA Compensation and Pension service determined that an earlier effective date for TDIU was not warranted based on extraschedular consideration. Entitlement to an effective date prior to August 7, 2014 for the award of a TDIU and DEA benefits. A total disability rating for compensation based on individual unemployability (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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted above, the Veteran separated from service on December 22, 2005. She was initially awarded service connection effective December 23, 2005 for bilateral pes planus with plantar fasciitis, chronic strain of right ankle, chronic strain of the left ankle, patellofemoral syndrome of the right knee, patellofemoral syndrome of the left knee and tinnitus. Each disability was assigned a 10 percent rating, except for pes planus (noncompensable), resulting in assignment of a 40 percent combined rating effective December 23, 2005. The Veteran was granted service connection for low back disability with a 20 percent rating assigned effective December 27, 2006. This resulted in a combined rating increase to 60 percent effective December 27, 2006. Subsequently, the Veteran was granted a separate 20 percent rating for left knee instability effective October 7, 2011 and a separate 10 percent rating for right knee instability effective October 7, 2011. This resulted in a combined rating increase to 70 percent effective October 7, 2011. The Veteran was subsequently awarded an increased 50 percent rating for pes planus with plantar fasciitis, effective August 7, 2014. This resulted in a combined rating increase to 90 percent. VA Vocational Rehabilitation (Chapter 31 services) records show that the Veteran applied for Chapter 31 Vocational Rehabilitation Service in December 2006. In February 2007, the Veteran was found to have an employment handicap due to her service-connected disabilities and was awarded Chapter 31 services. In February 2007, it was noted that employment aggravated these disabilities and that she had only had past part-time employment. It was noted that in the work setting she would not be able to perform prolonged standing or prolonged sitting and could not have physical demands. It was determined that the Veteran’s disabilities impacted her employability in that she could no longer market her existing transferrable skills. Her condition precluded her from accepting similar employment in the civilian workforce due to her service-connected limitations. She also had deficiencies in education and training. Her functional impairment precluded her from returning to work in a previously held position and her service-connected disabilities prevented her from currently obtaining and maintaining suitable employment. She was found to be able to identify a vocational goal that was feasible based on her receiving more education/training. In October 2007, it was noted that with Chapter 31 financial support, she was pursuing a bachelor’s degree in administrative specializations and planned to graduate in 2011. In December 2011, the Veteran’s program goal was changed to obtaining community college to obtain a certificate in medical billing because it was determined she would not be able to finish her BA program before her Chapter 31 benefits ran out. The Veteran subsequently obtained a certificate in Medical Billing and Coding in September 2012. In October 2012, the Veteran was declared job ready and placed into employment status. In December 2012, the Veteran reported that she had to quit a customer service call center job due to her medical conditions but had applied for an at-home position to accommodate her disabilities. In January 2013, the Veteran reported that getting a job was not her problem, but she could not keep one because she could not sit or stand for more than 20 minutes at a time. In August 2013, it was proposed that the Veteran’s Chapter 31 benefits be discontinued because she had stated that she was no longer capable of working due to her health issues. Later in August 2013, the Veteran asked for further assistance to allow her to become an at home medical transcriptionist. In a September 2013 closure statement, the Veteran’s Chapter 31 benefits were discontinued, and it was noted that she was not currently working. In a January 2016 affidavit, the Veteran reported that since her separation, she had only been able to work part time, working from home. She also indicated that all her training had been online or over the phone. With the ability to work from home on a part-time basis, she had the ability to make her own schedule. If she needed to take time off for increased symptoms, she could just post her hours and someone else would work for her. The Veteran indicated that due to her service-connected conditions, she had to take multiple breaks and change positions very often. She could not sit or stand very long before she needed to get up and stretch. She also needed to take multiple breaks every day. She reported a pain level of 8/10. The pain affected her ability to work and ability to function around the house. She noted that she could not bend, kneel or stoop without pain. In a January 2016 Social Security Administration (SSA) earnings statement, the Veteran’s taxed annual earnings were recorded from 1997 to 2014. From 2005 to 2014, the earnings were no higher than $17,767. In a March 2016 vocational employability assessment, which included a review of the Veteran’s claims file, a private certified rehabilitation counselor opined that it is more likely than not that the Veteran’s service-connected disabilities prevented her from securing and following substantially gainful employment since December 2005, the date of her military discharge. The counselor noted that based on the review of the evidence in conjunction with the Veteran’s self-report, her employment history had been sporadic since discharge. While she had been able to secure employment, it was the rehabilitation counselor’s opinion that the evidence showed that she had been unable to maintain any of these positions because of her service-connected disabilities. Further, in her opinion, each of the positions she had worked since 2011 was sheltered employment as it was part-time, provided a flexible work-schedule, allowed missed days of work and the work was performed out of her home where she could accommodate her physical disabilities as necessary. The counselor indicated that although the Veteran had the educational and vocational background for a number of sedentary occupations, she reported, and her VA medical records supported, that her residual physical capacity was less than that required for sedentary work. Specifically, she was unable to sustain over an eight-hour workday the frequent constant sitting or lifting/carrying of ten pounds occasionally, which was required. The above summarized evidence reasonably indicates that the Veteran was unable to secure or retain a substantial gainful occupation due to her service-connected disabilities from separation from service to August 7, 2014. The Board notes the Veteran met the schedular criteria for assignment of a TDIU as of October 27, 2011 by treating her combination of orthopedic disabilities as one disability ratable at least 60 percent. See 38 C.F.R. § 4.16(a). In this regard, the March 2016 certified rehabilitation counselor specifically found that it was more likely than not that the Veteran’s service-connected disabilities prevented her from securing and following substantially gainful employment since December 2005. As this opinion was based on a specific review of the claims file and the Veteran’s reporting, the Board finds that it is probative. Also, there is no specific expert opinion of record to the contrary (i.e. a vocational or medical opinion finding that the Veteran’s combination of disabilities would not have precluded substantially gainful employment from December 2005 to August 2014). Additionally, the Vocational Rehabilitation records establish that it was initially found that due substantially to her service-connected disabilities, the Veteran could no longer market her existing transferrable skills; that her conditions precluded her from accepting similar employment for which she might be qualified based on her past occupational/military experience; that employment activity aggravated her service-connected disabilities; and that she had only had part-time employment in the past. Subsequent records then show that she was unsuccessful in leveraging additional training in the medical billing field into substantially gainful employment due in part to her service-connected disabilities. Thus, as confirmed by her Social Security earnings statement, from December 2005 to August 2014 she was not successful in working to a level of substantially gainful employment. Although the Chapter 31 records suggest that there may have been factors other than the Veteran’s service-connected disabilities and her past education and work experience that contributed to her inability to work to a level of substantial gainful employment, these records do not include any specific, detailed opinion concluding that the Veteran was not precluded from employment due to her service-connected disabilities, educational level and past work experience level alone. Consequently, given the March 2016 private vocational opinion, the evidence is at least in equipoise as to whether the Veteran was unable to secure or follow or obtain or retain substantial gainful employment due to her service-connected disabilities with consideration of her educational level and past work experience. 38 C.F.R. § 4.16(a), (b). Accordingly, resolving any reasonable doubt in the Veteran’s favor, an earlier effective date of December 23, 2005 is warranted for the TDIU award. Additionally, because of this assignment of an earlier effective date for TDIU (i.e. an earlier effective date of December 23, 2005 for a permanent and total disability rating), an earlier effective date of December 23, 2005 for the award of DEA benefits is also warranted. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. § 3.807. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.