Citation Nr: 21008214 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 11-06 684 DATE: February 12, 2021 ORDER Entitlement to an effective date of October 29, 1998, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed his initial claim for service connection for a back and right knee condition on October 29, 1998, and entitlement to TDIU was raised during the appellate period. 2. For the entire appellate period since October 29, 1998, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected back and right knee conditions. CONCLUSION OF LAW The criteria for an effective date of October 29, 1998, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1980 to August 1984. The Veteran filed his initial service-connection claim for a back and right knee condition on October 29, 1998. See October 1998 VA Form 21-526. An April 1999 rating decision granted service connection for a right knee condition but denied service connection for a back condition. The Veteran submitted a notice of disagreement (NOD) in an April 1999 statement seeking a higher rating for his service-connected right knee condition and additionally service connection for his back condition. A May 2005 Board of Veterans’ Appeals (Board) decision denied a higher rating for the Veteran’s right knee condition and service connection for a back condition. In February 2007, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) regarding service connection for the Veteran’s back condition. A November 2009 rating decision granted service connection for the Veteran’s back condition. The Veteran submitted a NOD in a December 2009 statement appealing the initial rating for his back condition. A December 2014 Board decision remanded the increased rating issue regarding the back and noted TDIU was raised and intertwined with the back issue. An April 2017 rating decision denied entitlement to TDIU. The Veteran submitted a NOD regarding TDIU in May 2017. A March 2019 Board decision granted a higher initial rating for the Veteran’s back condition and granted TDIU from March 8, 2016. A June 2020 Court memorandum decision set aside the portion of the March 2019 Board decision denying an earlier effective date for TDIU prior to March 8, 2016. The issue of the initial rating for the Veteran’s back condition was pending the entire appellate period prior to March 8, 2016. The Veteran claimed entitlement to TDIU based on his service-connected back and right knee conditions. See June 2016 VA Form 21-8940. As early as April 1999, the Veteran stated that he lost jobs due to his back pain ever since separating from service. As such, the issue of TDIU dates back to October 29, 1998 for the initial grant of service connection for the Veteran’s back condition. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is reasonably raised by the record. 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) (2017). 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 (ES) 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 ES total disability rating for compensation purposes based on individual unemployability in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on 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(o)(1). Entitlement to ES TDIU was initially denied in an October 2018 decision by the Compensation Service Director. Prior to March 8, 2016, the Veteran did not meet the schedular requirements for TDIU. In pertinent part, the Veteran has been rated at least at a combined 40 percent rating since October 29, 1998 for his back and right knee conditions. The Board notes the Veteran received a temporary 100 percent rating for his right knee condition from March 14, 2002 until May 1, 2002. As such, this decision will focus on the periods outside of the period when the Veteran had a 100 percent rating. The record has been unclear as to when the Veteran worked. The Veteran submitted various VA Form 21-8940s that noted different dates of employment. The June 2016 VA Form 21-8940 noted the Veteran last worked full-time in 2003, earned $16,000 a year in 2002 as a truck driver, was employed as a truck driver until 2005, and had a 3-year college degree. The August 2016 VA Form 21-8940 noted the Veteran last worked full-time in 2000, earned $15,000 in 1997, was a pickup truck driver until 1999, and had a 2-year college degree in carpentry. The August 2016 VA Form 21-8940 noted the Veteran became too disabled to work in 2002, earned $18,000 in 2001 as a driver, worked until 2006, and had a 4-year college degree in teaching kinesiology. Given the inconsistencies in these forms, the Board does not find the VA Form 21-8940s credible as to documenting when the Veteran worked. Therefore, the Board will consider other evidence of record. The March 1999 VA examination report noted the Veteran was not employed as a mechanic since he could not crawl under cars or on ladders in order to do his job and that his mechanical skills were impaired due to his right knee and lower back conditions. The Veteran stated in April 1999 that he lost at least 4 jobs due to his low back pain since separating from service and that he has only held low paying jobs since he could not keep up with the rest of the crew. Dr. D.E.’s May 1999 evaluation noted the Veteran was a carpenter and was unable to hold a job secondary to his inability to comply with demands of physical labor secondary to both his knee and back conditions. The April 2001 VA examination report noted the Veteran worked full time until 1997, that his work was limited due to instability and use of a cane, and that he held various truck driving and odd construction jobs, but was unable to do them on a consistent basis. The January 2020 VA examination report noted the Veteran was currently working as a truck driver, but his knee became painful with prolonged driving and his back required a cushion. An April 2002 Veteran statement noted he was returning to work as a truck driver after convalescence for his right knee surgery. See March 2002 Veteran statement. An August 2002 VA examination report noted the Veteran delivered auto parts for his friend 2-3 days a week and it was the only work he could get. An August 2002 VA Form 28-1900 noted the Veteran was a truck driver making $950 a month, but that his back problems impacted his performance. The Veteran stated at the January 2003 Board hearing that he worked for his friend, his friend was understandable about limiting his work to part-time, and that he used to be a trash hauler prior to trucking. See January 2003 Board hearing tr. at 4, 6. February 2004 VA examination reports noted the Veteran was unemployed since May 2002, he was a former auto part truck driver, he had painful knees, used a cane, had severe back pain daily, and had difficulty getting out of bed. October 2006 SSA records noted the Veteran was employed from 2000 until May 2003 when he quit. Other SSA records noted the Veteran’s work history of doing mechanic and carpenter jobs following active service until 1997, and then as a part pick-up truck driver from November 1999 to May 2003. A September 2008 VA examination report noted the Veteran was unemployed since 2002 and that he used to be a driver for an oil field company and used a cane. The above evidence suggests that the Veteran was employed until around 2003. During the appellate period, the Veteran was employed as a truck driver delivering parts. However, evidence suggests that the Veteran had periods of only working part-time and made around $1,000 a month. This does not amount to substantially gainful employment. Additionally, and importantly, the Veteran stated that he was a driver working for his friend who allowed him to limit his work. As such, the Veteran’s truck driving position during the appellate period appears to have been in a protected environment that gave him leniency in his work. Overall, at no time during the appellate period was the Veteran gainfully employed, particularly in the absence of a protected environment. The question now turns to whether the Veteran’s service-connected conditions prevented him for obtaining gainful employment. In addition to the above evidence, a June 2007 SSA decision granted the Veteran SSA disability from May 30, 2003, based on the date noted on his application for when he became disabled and unable to work. October 2011 correspondence noted the Veteran had daily flare-ups of his back and knees and that he was unable to keep up on the job. October 2012 VA examination reports noted the Veteran’s back pain was worse with walking, bending, going up stairs, lifting heavy objects, prolonged driving, and that he could not work his occupations of being a mechanic and carpenter due to his back and knees. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’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). Here, the evidence demonstrates that the Veteran has primarily worked in manual labor and driving jobs. The Veteran does not have training, education, or experience for an administrative or office related position. Although the Veteran obtained a college degree, the Veteran still does not have work experience in that field. Medical evidence and experts of record indicate throughout the appellate period that the Veteran’s back and right knee conditions impacted and prevented him from working in manual labor positions. Specifically, mechanic, carpentry, and construction positions would require the Veteran to lift heavy objects, climb stairs, and bend and twist. However, medical evidence noted the Veteran’s back and right knee conditions prevented such activities. The Veteran’s back and right knee conditions also impacted his ability to drive long distances. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected back and right knee conditions. The Board notes the initial grant of service-connection for the Veteran’s back and right knee conditions is from October 29, 1998. The Veteran filed his initial service-connection claim received October 29, 1998. See October 1998 VA Form 21-526. Therefore, October 29, 1998 is the earliest possible effective date for the grant of TDIU. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of October 29, 1998, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.