Citation Nr: 21013171 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 200205-59813 DATE: March 8, 2021 ORDER Entitlement to an effective date prior to November 29, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran’s service- connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to November 29, 2016. CONCLUSION OF LAW The criteria for an effective date prior to November 29, 2016 for the grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 3.400(b), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from March 1960 to March 1963 and February 1964 to March 1968. In a March 2020 decision, the Board concluded that effective date of November 29, 2016 was warranted. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court remanded the claim for development consistent with the parties’ September 2020 joint motion for remand (JMR). 1. Entitlement to an effective date prior to November 29, 2016 for the grant of a total disability rating based on individual unemployability. The Veteran claims entitlement to an effective date prior to November 29, 2016 for the grant of TDIU. Specifically, the Veteran asserts that he is entitled to an effective date of August 31, 2009 – the date he was last gainfully employed – for the assignment of TDIU. See January 2021 Appellate Brief. A November 2017 rating decision granted service connection for radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, and a lumbar disability effective August 17, 2005 – the date of the Veteran’s original claim. In November 2017 the Veteran issued a VA Form 21-8940 application for TDIU. In July 2018, the Veteran also submitted a notice of disagreement with the lumbar spine evaluation and made an additional assertion of entitlement to TDIU from August 31, 2009. Here, in assigning an effective date the Agency of Original Jurisdiction (AOJ) and the Board in its March 2020 decision, treated the Veteran’s TDIU claim as a new claim for increase under 38 C.F.R. § § 3.400(o)(2). However, the Court has held that when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thus, the Board finds that the Veteran’s TDIU is part of his initial claim for service connection. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Unless specifically provided, the effective date will be assigned based on the facts as found. 38 C.F.R. § 3.400(a). Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable 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 combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for radiculopathy of the right lower extremity evaluated as 40 percent disabling, radiculopathy of the left lower extremity evaluated as 40 percent disabling, and degenerative joint disease of the lumbar spine evaluated as 20 percent disabling. Throughout the appeal period, the Veteran met the schedular requirements for TDIU. However, the evidence does not show, and the Veteran does not assert, that he is entitled to TDIU on August 17, 2005, which is the date of his initial claim. As such, the issue that remains disputed is the effective date entitlement to TDIU arose – that is the date upon which the Veteran became unemployable due solely to his service-connected disabilities. For the following reasons, the Board finds the preponderance of the evidence against a finding that the Veteran was entitled to TDIU prior to November 29, 2016. In the November 2017 VA Form 21-8940 TDIU application and subsequent appellant briefs, the Veteran asserts that he is entitlement to TDIU effective August 31, 2009 – the date he reportedly became too disabled to work. A November 2017 Social Security earnings record confirms that the Veteran was last gainfully employed in 2009. However, the preponderance of the evidence does not show that the Veteran’s service-connected lumbar spine disability and residual radiculopathy was the cause of his unemployability. An August 2007 VA treatment note indicates the Veteran was being treated for swelling of the legs and feet. He reported that approximately 11 months ago his job changed. His new position fixing cell phones required him to stand up for approximately 11 hours a day instead of sitting. The evidence shows that in April 2008 the Veteran suffered a myocardial infarction. An October 2009 VA treatment record indicates that the Veteran suffered respiratory failure status post cardiac arrest due to severe bradyarrhythmia. A July 2010 VA treatment note indicates that the Veteran was in cardiac rehabilitation. The cardiologist recommended that the Veteran be considered disabled because he is unable to complete routine exertion activity without angina. The Veteran also stated that his company is laying him off soon. During a March 2011 VA joint examination, the Veteran reported that he retired in 2010 based on being eligible by age or duration of work. During the April 2013 VA spine examination, the Veteran reported that in 1999 he began to have back pain that affected his ability to work. He reported he was seeing a cardiologist for something else and was encouraged to see his primary care physician (PCP). The Veteran reported that his PCP saw him and ordered x-rays. The Veteran reported that the back pain he felt in 1999 was more intense than the pain he currently feels even though it was in the same location. Regarding functional impact, the Veteran reported that his back condition causes pain with prolonged standing and sitting. During an August 2015 VA spine examination, the Veteran reported that his back condition makes him unable to stand and do his electronics work. The examiner noted that the Veteran was gainfully employed for over 40 years in electronics testing and repair until he retired for another unrelated condition in 2009. The examiner further noted that his VA treatment records do not mention back pain until 2013. An October 2016 lay statement from the Veteran’s wife indicates that some time the Veteran’s back pain was so severe she would insist that he take time off from work. Notably, on the Veteran’s November 2017 TDIU application he reports he’s been under a doctor’s care or hospitalized due to his back condition since only 2016. In addition, during the December 2017 VA examination, the Veteran reported that he has not worked since 2009 when he collapsed due to sudden cardiac arrest. In sum, the Board finds the preponderance of the evidence is against a finding that prior to November 29, 2016, the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. The preponderance of the evidence consistently shows that the Veteran stopped working – at the age of 67 – due to cardiac arrest and heart residuals. The Board acknowledges that throughout the appeal period the Veteran’s back pain impacted his ability to work. The Board finds the Veteran’s statements that his back pain made standing or sitting for long hours difficult credible. The Board also finds the Veteran’s wife’s statement that he had to take time off the work when his back pain was severe credible. However, the preponderance of the evidence shows that the Veteran was able to work fulltime despite his back condition and residuals. Prior to 2016 the functional impairment caused by his back condition did not rise to the level contemplated by TDIU. The Veteran’s limitations due to his service-connected back condition and radiculopathy are considered in the combined disability rating he receives. Indeed, the assignment of the 80 percent schedular rating prior to the November 29, 2016 assignment of TDIU is recognition of the functional limitations caused by his disabilities and that rating contemplates the severity and overall impact the symptoms have on the Veteran’s life. As such, the evidence does not persuasively support a finding that the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. See 38 C.F.R. § 4.19. The Board finds that the evidence does not show that the Veteran was entitled to TDIU prior to November 29, 2016. Thus, entitlement to an earlier effective date is denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, 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.