Citation Nr: 21008640 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-29 154 DATE: February 17, 2021 ORDER Entitlement to an earlier effective date for a total disability rating due to individual unemployability (TDIU), beginning March 7, 2002 is granted. FINDING OF FACT The Veteran’s combined service-connected disabilities were rated at 60 percent, and the evidence shows that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment since March 7, 2002. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met, beginning March 7, 2002. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to March 1988 with a honorable discharge. The Veteran also served on active duty from March 1988 to September 1990 with a discharge considered dishonorable for VA purposes. The Board of Veterans’ Appeals (Board) remanded entitlement to TDIU in December 2006 and July 2009 for further development. The regional office (RO) granted TDIU retroactively with an effective date of August 29, 2009 in August 2010. The Veteran was notified of the August 2010 decision in January 2011. The Veteran submitted a notice of disagreement in January 2012, disagreeing with the effective date. In March 2013, the Veteran’s attorney withdrew representation prior to certification of the appeal to the Board. Prior to certification of an appeal to the Board, a claimant’s representative may withdraw from representation before an agency of original jurisdiction at any time, “if such withdrawal would not adversely impact the claimant’s interest.” 38 C.F.R. §§ 14.631, 20.608(a). The Board finds that there is no adverse impact to the Veteran’s interest, and the attorney withdrew representation with adequate notice and time for the Veteran to obtain new representation, which the Veteran has not done. The Veteran withdrew his request for a decision review officer hearing in August 2017. The Board acknowledges that in June 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form regarding the issue on appeal. VA notified the Veteran in September 2018 the issue was already activated by the Board, and therefore, no longer eligible for the RAMP program. TDIU is warranted where the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, because of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The determination must be made without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Where the schedular percentage requirements for TDIU are not met, entitlement to benefits on an extraschedular basis may be considered, as it is the established policy of VA that all 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). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is currently entitled to a TDIU, effective August 24, 2009. The Veteran has been entitled to a combined rating of 40 percent since January 31, 1991, a combined 60 percent since March 7, 2002; and a combined rating of 70 percent beginning August 24, 2009. The Veteran did not meet the schedular criteria for a TDIU prior to August 24, 2009 because he did not have a single disability rated at 60 percent or more, or multiple disabilities with a combined disability rating of 70 percent with one of at least 40 percent. See 38 C.F.R. § 4.16(a). As the Veteran’s combined disability rating did not meet the schedular criteria for a TDIU prior to August 24, 2009, extraschedular consideration is warranted. The Veteran contends he should be entitled to a TDIU, since 2002. See July 2014 VA Form 9; December 2015 VA 21-4138. The Veteran’s military occupational specialty (MOS) was listed as a mortarman in the DD-214s. In the May 1997 TDIU claim, the Veteran listed his back and sciatic nerve disabilities as conditions precluding him from gainful employment. He also reported working in the service industry, as a handyman, and as a bartender. The Veteran did not report any education past high school. The Veteran provided letters from R.O., M.C., and A.O. in May 1997; three potential employers who explained that they were unable to offer the Veteran employment because of his lower extremity and back conditions. In the March 2002 neurological VA examination, the Veteran reported sciatic pain of 8 to 10/10 that was aggravated by activity. The pain would last for an unpredictable amount of time. The examiner noted there was functional loss due because the Veteran’s gait was significantly impaired. In the March 2002 spine VA examination, the Veteran reported cramping of his legs, involuntary movement of his toes, and stabbing pain in both calves. Prolonged sitting, prolonged standing, and bending aggravated his pain. In the functional assessment, the examiner noted the Veteran’s back disability affected independent activities of daily living. Back flexion was limited to 31 degrees, extension was limited to 5 degrees, and lateral bending was limited to 11 degrees bilaterally. Due to the back condition, the Veteran could not go to baseball games or to his child’s karate classes. He also could not go to movie theaters or drive a car. In the March 2003 spine VA examination, the Veteran reported walking more than five minutes, bending, sitting, and standing up aggravated his back pain. The Veteran did report unsteadiness and falls. In an August 2020 VA memo, the Veterans Service Center Manager at the RO recommended TDIU benefits be granted on an extraschedular basis beginning March 7, 2002. In a November 2020 advisory opinion, the Director of Compensation Services concluded that extraschedular entitlement to TDIU was not shown due to the Veteran’s service-connected conditions prior to August 24, 2009. The Director acknowledged the Veteran cannot stand for long time, drive a car, or walk long distances unassisted. The Veteran’s work history reflected labor intensive unskilled labor. The evidence of record shows the Veteran’s service-connected conditions would greatly limit his ability to perform forms of labor which required long periods of sitting, standing, walking. The Veteran is also unable to drive due to his disabilities. The evidence fails to show the Veteran has work experience or the education necessary to secure and maintain employment which would not be limited by his service-connected back and lower extremity radiculopathy. The Director of Compensation Services has already considered this claim on an extraschedular basis; no further development or adjudication in that regard is needed. The totality of the evidence of record, the Board determines that the Veteran’s service-connected disabilities, based upon his level of education and occupational work history, would prevent him from securing or following a substantially gainful occupation beginning March 7, 2002. Therefore, the criteria for TDIU have been met, and the claim is granted under 38 C.F.R. § 4.16(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED