Citation Nr: 21010618 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-14 867 DATE: February 25, 2021 ORDER An effective date of November 27, 2012 for the assignment of a total disability rating due to individual unemployability (TDIU) is granted. An effective date of November 27, 2012 for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. REMANDED Entitlement to a rating in excess of 10 percent for a left ankle sprain is remanded. Entitlement to a rating in excess of 10 percent for a right ankle sprain is remanded. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to an effective date for the assignment of a TDIU prior to November 27, 2012 is remanded. Entitlement to an effective date for the award of DEA under 38 U.S.C. Chapter 35 prior to November 27, 2012 is remanded. FINDINGS OF FACT 1. On November 27, 2012, VA received the Veteran’s claim for an increased rating for right and left knee disorders. 2. The Veteran has been shown to have been unable to secure and follow substantially gainful employment since at least November 27, 2012 due to his service-connected disabilities. 3. As entitlement to a TDIU is granted herein as of November 27, 2012, basic eligibility for DEA benefits have been met as of that date. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 27, 2012 for a TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.104, 3.105(a), 3.155, 3.156, 3.157, 3.159, 3.114, 3.186, 3.400. 2. The criteria for an effective date of November 27, 2012 for the award of basic eligibility for Dependents’ Educational Assistance benefits are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As will be discussed in detail below, the Veteran filed a claim for an increased rating for coronary artery disease (CAD), status post pacemaker implantation with residual scar, on November 27, 2012. The RO did not address this claim, as it proposed to sever, and then actually severed service connection for CAD in August 2014 and October 2015. The Veteran perfected an appeal to the severance of service connection for CAD and the Board remanded the issue, along with all the of issues on appeal in this decision, in January 2019 and June 2020. In those remands, the Board noted that, as service connection remained severed for CAD, adjudication of the issue of an earlier effective date for TDIU and DEA benefits would be premature until the severance issue for CAD was resolved. 38 C.F.R. § 3.400(o)(1). In an October 2020 rating decision, the RO re-established service connection for atherosclerotic cardiovascular disease with coronary artery disease. This rating decision reflected a change in diagnosis, removing non-service-connected sick sinus syndrome. As service connection has now been reinstated for CAD, the Board will proceed to adjudicate the Veteran’s earlier effective date claims. Earlier Effective Date – TDIU As TDIU is a type of increased rating claim, the laws governing the assignment of effective dates for these types of claims apply. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). Generally, the effective date of an evaluation and award of service-connected compensation is 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. If it is factually ascertainable that an increase in disability occurred one year or less prior to filing a claim for an increased rating, the date of the worsening can serve as the effective date. If the worsening occurred more than one year prior to the date of claim, the date of claim will serve as the effective date. 38 C.F.R. § 3.400 (o)(2). The Veteran asserts that he is entitled to an earlier effective date for the grant of TDIU. Entitlement to TDIU was granted in an October 2014 rating decision, with an effective date of February 28, 2014, the date the Veteran filed his initial claim for TDIU. In granting TDIU, the RO did not specify which service-connected disabilities caused his unemployability; however, in his February 28, 2014 TDIU claim, he contended that his service-connected bilateral knee and CAD disabilities rendered him unable to work. The Veteran has asserted that he has not worked since May 2003, and that his last position was as a greeter at Sam’s Club. He contends that his service-connected right and left knee disabilities and CAD rendered him unable to work. The Veteran indicated that he had completed high school and two years of college and had not received any additional training or education. See VA form 21-8940 dated February 28, 2014. In his May 2016 VA Form 9, the Veteran contended that an earlier effective date was warranted for TDIU because the RO overlooked a July 2011 rating decision for CAD conceding that private medical records noted treatment in August 2004 through August 2007 for CAD, in April 2008 for pacemaker, and a September 1996 Agent Orange examination. Essentially, he argued that the TDIU issue was raised as part of the initial grant of service connection for CAD. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran initially filed a claim for entitlement to service connection for CAD on September 24, 2010. In the July 2011 rating decision, the RO granted entitlement to service connection for CAD, status post pacemaker implantation with an evaluation of 30 percent, effective August 31, 2010. The Veteran did not file a notice of disagreement with this decision. However, in the year following the July 2011 rating decision, new evidence was added to the record including private medical records and VA medical records. VA was in constructive receipt of documents generated by VA, including at the time of the July 2011 rating decision, and within the year thereafter. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Accordingly, the treatment records were received such that VA was obligated to make a determination whether the evidence was new and material. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). As no subsequent rating decision has made a determination with regard to this evidence, the July 2011 rating decision did not become final. However, since the Veteran did not appeal the initial rating assigned for CAD, there was no claim for a higher rating stemming from the July 2011 rating decision. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). There is no increased rating claim associated with this decision and therefore no TDIU issue arose from the service-connected CAD. While the Veteran filed a claim for an increased rating for CAD in November 2012, as noted above, this claim was not adjudicated and is being referred to the RO for further action. The claim is not before the Board on appeal. As such, the appeal for the TDIU claim is not part and parcel of an increased rating claim for CAD. The Veteran also filed a claim for entitlement to service connection for right and left knee disabilities on September 24, 2010. In an October 2012 rating decision, the RO granted entitlement to service connection for right and left knee disabilities at 10 percent ratings each, effective September 24, 2010. The Veteran did not file a notice of disagreement with this decision. However, in the year following the October 2012 rating decision, new evidence was added to the record including VA and private medical records. No subsequent rating decision has made a determination with regard to this evidence, which prevented the October 2012 rating decision from becoming final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020), Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The Veteran filed claims for increased ratings for his right and left knee disorders in November 2012. These claims are on appeal before the Board and are addressed in the remand below. As the October 2012 rating decision did not become final, the appeals period for the current increased rating claims for his right and left knee disabilities begins September 24, 2010, or the date of his initial claim. As his claim for TDIU is associated with increased rating claims for his bilateral knee disabilities under Rice, the Board finds that the appeals period for entitlement to TDIU began on September 24, 2010, or the date the Veteran filed his claim for service connection for right and left knee disorders and was awarded his initial compensation. A TDIU is based on unemployability due solely to service-connected disabilities. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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 combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Here, effective November 27, 2012, the Veteran was service-connected for PTSD with depressive disorder and anxiety disorder not otherwise specified at a 50 percent disability rating, CAD status post pacemaker implantation with residual scar (which diagnosis was clarified to atherosclerotic cardiovascular disease with CAD as of January 1, 2015) at a 30 percent disability rating, left and right knee osteoarthritis, left and right ankle sprain, tinnitus, left and right hip bursitis and osteopenia with limitation of extension, left and right foot heel spurs all at 10 percent ratings each, and for bilateral hearing loss, right middle finger arthritis, left hip bursitis and osteopenia with limitation of flexion, right hip bursitis and osteopenia with limitation of flexion, and right hip bursitis and osteopenia with additional impairment, all at noncompensable ratings. His combined rating was 90 percent as of November 27, 2012. As such, the percentage requirements for a TDIU rating under 38 C.F.R. § 4.16(a) were met as of this date. The evidence of record supports that a TDIU under 38 C.F.R. § 4.16(a) is warranted as of November 27, 2012. A September 2012 VA examination report shows that the Veteran reported that his right and left knee pain was severe and constant and that he had stiffness and decreased range of motion. He had undergone steroid injections which only relieved his pain for approximately one week. The examiner opined that the Veteran’s service-connected knee disabilities rendered him unable to stand or walk for long periods of time. The Veteran underwent another examination in November 2013. The examiner opined that knee would limit prolonged weight-bearing activities, such as standing and walking and that he would also be limited in performing activities of climbing stairs or ladders. The term unable to secure and follow a substantially gainful occupation in § 4.16(b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner). The Veteran has contended that he has been unable to work since 2003 and the evidence reveals that the Veteran has, in fact, not worked since 2003. In the absence of actual employment, the Board turns to the non-economic component of TDIU. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In this case, the Board finds that the impairment attributable to his service-connected disabilities, in particular his service-connected knee disabilities, would prevent him from securing and mainlining gainful employment beginning November 27, 2012. The Veteran’s most recent employment was as a greeter, which would require standing or walking. His lay statements and medical evidence during the time period beginning November 27, 2012 show that his bilateral knee disabilities caused significant impairment and would prevent him from maintaining this type of employment. As such, the Board finds that TDIU is warranted beginning November 27, 2012. Earlier Effective Date – DEA under 38 U.S.C. Chapter 35 For purposes of entitlement to DEA benefits under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, a veteran was discharged from service under conditions other than dishonorable and is rated permanently and totally disabled due to service-connected disabilities. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. When the RO granted TDIU effective February 28, 2014, the basic eligibility for DEA was established. DEA benefits may not be awarded prior to the effective date of an award of a permanent and total disability rating. Here, the Board is granting an effective date of November 27, 2012, for entitlement to TDIU. Therefore, the Veteran is entitled to an effective date of November 27, 2012, for entitlement to DEA benefits. 38 U.S.C. §§ 3501, 3510. To this extent, the claim is granted. REASONS FOR REMAND Increased Rating Claims – Ankles, Knees The Veteran has contended that his service-connected bilateral ankle and knee disabilities warrant higher ratings. The Veteran was most recently provided VA examinations in October 2020, in order to assess the current severity of the disabilities. The examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements and pain on weight-bearing testing. The examiner declined to provide estimates of reduced range of motion after repetitive use because the Veteran “could not reliably demonstrate” the range loss and other records did not previously describly the restriction. It appears the examiner either did not ask or did not rely on the Veteran’s verbal statements about his functioning to attempt to make the estimate. As a result, the examinations are, once again, inadequate. As such, a remand is necessary to properly assess the current severity of these disabilities. Earlier Effective Dates – TDIU; DEA under 38 U.S.C. Chapter 35 - Finally, because a decision on the remanded issues could significantly impact a decision on the issues of earlier effective dates for TDIU and DEA under 38 U.S.C. Chapter 35, the issues are inextricably intertwined. A remand of the claims for the earlier effective dates issues is required. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee and ankle disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (Continued on the next page)   If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.