Citation Nr: 21014073 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-31 742A DATE: March 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 30, 2015, is granted. FINDING OF FACT From December 30, 2015 (date of receipt of VA Form 21-8940), the Veteran was precluded from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Entitlement to a TDIU is warranted from December 30, 2015. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to February 1992 and February 2003 to July 2003. The Board previously denied this matter in a September 2019 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, resulting in a September 2020 Joint Motion for Partial Remand (JMPR). Subsequent to the Board’s September 2019 decision, the Veteran was awarded a 100 percent combined disability evaluation, effective February 18, 2020. The issue of TDIU is moot for the period from February 18, 2020. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). The Board’s grant of TDIU in this decision is based on the combined impairment of multiple service-connected disabilities and not a single disability. As such, there is no course for special monthly compensation under 38 U.S.C. § 1114(s). Bradley, supra; Akles v. Derwinski, 1 Vet. App. 118 (1991). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 18, 2020 Total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In evaluating entitlement to a TDIU, the central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In his December 30, 2015, VA Form 21-8940 Application for a TDIU, the Veteran reported that he last worked in October 2012 due to his service-connected disabilities, specifically his fibromyalgia, right shoulder, and knees. As of December 30, 2015, the Veteran was service-connected for fibromyalgia, evaluated as 40 percent disabling; degenerative disc disease, lumbar spine with intervertebral disc syndrome IVDS, evaluated as 10 percent disabling; tension headaches, evaluated as 30 percent disabling; degenerative joint disease, right shoulder, evaluated as 20 percent disabling; retropatellar pain syndrome, right knee, evaluated as 10 percent disabling; retropatellar pain syndrome, left knee, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; left lower extremity radiculopathy, evaluated as 10 percent disabling; right lower extremity radiculopathy, evaluated as 10 percent disabling; and scars, residuals of spinal surgery, evaluated as noncompensable. The Veteran had a combined evaluation of 80 percent. He met the schedular criteria for a TDIU. A decision to grant a TDIU is based upon the decision of the adjudicator. It is the Board’s determination that the medical and lay evidence shows that the Veteran’s service-connected disabilities rendered him unemployable from December 30, 2015. The evidence suggests that the combined effects of his multiple service-connected disabilities limited his physical capabilities to a degree that sustained and gainful employment was not possible. In making this determination the Board has contemplated the findings of the September 2020 JMPR, VA medical records, VA examinations, lay statements, and the June 2019 private medical opinion. As such, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from December 30, 2015. Accordingly, entitlement to a TDIU is warranted from December 30, 2015. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.   In determining the effective date of entitlement to a TDIU, the Board has considered the general effective date rule of 38 U.S.C. § 5110 (a) as it was at the time of the Veteran’s December 30, 2015, VA Form 21-8940 and as it has been amended in accordance with the Appeals Modernization Act. Importantly, the change in the law or language of the statute does not change the outcome of this decision. Under the circumstances of this case, the date of receipt of the Veteran’s TDIU shall be the effective date. An exception to the general rule under section 5110 (a) does not apply here. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.