Citation Nr: 21015273 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-01 267 DATE: March 17, 2021 ORDER Entitlement to an effective date of October 12, 2004 for the grant of entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include as on an extraschedular basis, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, beginning October 12, 2004, the evidence is at least in equipoise that her service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 12, 2004 for a grant of entitlement to a TDIU have been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to October 1990, and from February 1991 to October 1991, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Huntington, West Virginia. Jurisdiction of this appeal is currently with the RO in Pittsburgh, Pennsylvania. This case was most recently before the Board in December 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Earlier Effective Date for the Grant of a TDIU The Veteran seeks an effective date earlier than August 3, 2005 for the grant of entitlement to a TDIU, to include as on an extraschedular basis. Specifically, the Veteran and her representative contend that she had substantial bars to employability due to her service-connected disabilities prior to August 3, 2005 due to the combined effects of her worsening disabilities that rendered her incapable of sustaining gainful employment. See Appellate Brief, February 16, 2021. Additionally, her representative contends that the combined severity of her conditions was underrated and did not reflect her true loss of functional ability to maintain gainful employment, especially with regard to her fibromyalgia and chronic fatigue syndrome, and that those conditions have always been more severe than the current ratings assigned and continue to worsen. Id. Moreover, the Veteran contends that the effective date of her fibromyalgia should be October 2004 so that her TDIU would be schedular from that earlier date, and that she was unbale to maintain gainful employment beginning in 1991. Id; see also Notice of Disagreement, April 8, 2011. Finally, the Veteran and her representative assert that the Veteran’s fibromyalgia, irritable bowel syndrome, and sleep apnea were service connected as of the date of her last employment, and that such disabilities are what resulted in her unemployability due to their severity; therefore, the effective date of her TDIU should be October 12, 2004, the last date of her employment. See e.g. Correspondence, November 29, 2020. Initially, the Board notes that the Veteran has been granted entitlement to a TDIU beginning August 3, 2005. The Board also notes that the Veteran submitted a Decision Review Request: Supplemental Claim (VA Form 20-0995) appealing the effective date assigned for chronic fatigue syndrome. However, as that claim is subject to the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), and are subject to separate and distinct legal criteria, that issue is not currently before the Board and will not be discussed further herein. The effective date of a grant of service connection is governed by 38 U.S.C. § 5110 as implemented by 38 C.F.R. § 3.400. 38 U.S.C. § 5110(a) states, “unless specifically provided otherwise in this chapter, 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 therefore.” 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Generally, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). The implementing regulation specifies than an effective date of an award based upon a claim for increased disability rating “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). A claim of entitlement to a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). While a veteran may submit a separate claim for TDIU, a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial increased rating claim or a regular increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). However, a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran filed a claim seeking entitlement to a TDIU based on her service-connected disabilities that was received by VA on January 6, 2005. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. At that time, the Veteran indicated that all of her service-connected disabilities prevented her from securing or following any substantially gainful occupation beginning in 1991, that she last worked in October 2004, and indicated she became too disabled to work in December 2003. Id. Specifically, she stated she was laid off from her job due to missing work, but was not told this directly, and that all of her jobs were lost due to missed work as documented in her file. Id. Additionally, in a January 2001 correspondence, received by VA in February 2004, the Veteran indicated that she had filed a claim for an increased rating for her muscle pain and that she missed work due to many appointments for pain; and that beginning in 1999, she is prescribed strong pain medication that she cannot take during the day due to driving and work. See Correspondence, January 18, 2001; see also Correspondence, June 30, 2004; see also Correspondence, April 26, 2005. The Veteran indicated she was let go from her job in October 2004, and was only able to do part-time work for a month after but lost that job due to performance issues; she also indicated she struggled with employment since 1991. See e.g. Correspondence, April 26, 2005; see e.g. Correspondence, May 15, 2007. The Board also notes that the Veteran filed an informal claim seeking increased ratings for her service-connected digestive and pain conditions, as well as other claims for service connection. See Informal Claims, August 3, 2005. At that time, the Veteran also indicated she lost her job in October 2004 and had not worked since, and indicated her service-connected disabilities rendered her unemployable. Id. Accordingly, the Veteran is potentially entitled to an effective date of January 6, 2004, going back to the date of her claim for a TDIU, and a one-year look-back period. Prior to August 3, 2005, the Veteran was service connected for sleep apnea, rated as 30 percent disabling prior to March 7, 2007; muscle joint/upper back pain with fatigue and a sleep disorder, rated as 40 percent disabling from February 18, 1995 to October 7, 1996; fibromyalgia with fatigue, memory loss and impaired concentration, rated as 40 percent prior to August 3, 2005; and irritable bowel syndrome, rated as 10 percent prior to August 3, 2005. Her combined rating was 50 percent prior to October 7, 1995, and 60 percent from October 7, 1995 to August 3, 2005. The first time the Veteran met the schedular criteria for a TDIU was on August 3, 2005. As the Veteran did not meet the schedular criteria for TDIU prior to August 3, 2005, that is, she did not have one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and a combined rating of 70 percent or higher, TDIU on a schedular basis must be denied. However, where a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The record reflects that the Veteran has a high school diploma, and did not attend college. She also obtained a real estate license in March 2004. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran has reported past employment as a loan processor for several financial corporations. Id. She reports her last day of employment was October 12, 2004; but has also reported she worked part-time for about one month after. Id. The Social Security Administration (SSA) determined the Veteran became unemployable in October 2004 due to chronic fatigue syndrome, fibromyalgia, and asthma. See SSA/SSI Letter, June 1, 2007. As such, the Board determines that the Veteran has been essentially unemployed beginning in October 2004. Additionally, the Veteran that she was laid off from her last job and was told that this was due to work being “slow,” but that she was certain it was due to missing work. See Correspondence, January 4, 2005. She reported she had difficult with her supervisor, and felt she could not file an Equal Employment Opportunity Commission (EEOC) complaint for fear of retribution, and she used all of her paid leave as well as took unpaid leave due to her disabilities. Id. The Veteran reported that she quit her prior job because she was afraid of being fired for missing work, and that she had problems with absences from her previous jobs. Id. At a May 2000 VA examination, the Veteran reported she was employed at a mortgage company, and took the current job as a promotion from her previous employment. She reported she had to take time off from work periodically due to medical complaints. Of record is a March 2004 VA treatment record indicating that the Veteran worked full-time as a loan officer; missed work for doctors’ appointments; missed work when not feeling well; and that resulted in problems with her jobs and leading to “job hopping.” In a November 2004 letter submitted by Dr. J. B., the Veteran’s private doctor, noted that the Veteran’s medical history included fibromyalgia, irritable bowel syndrome, insomnia, fatigue, and desert storm syndrome. Dr. J.B. indicated the Veteran had numerous problems that required her to miss a lot of work, and was recently laid off from a job that required sitting for prolonged periods. Dr. J.B. noted that the Veteran believed this was related to her medical conditions. He opined that the Veteran had limitations within the work environment, and would most likely require a position where she could frequently change positions that had a mix of both physical and mental work. In a December 2004 letter submitted by the Veteran’s private doctor, Dr. J.B., Dr. J.B. opined that the Veteran was unemployable, and noted her constant pain that was unresponsive to all forms of therapy. In her January 2005 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported she worked 40 hours a week consistently from June 1991 to October 2004. She had five jobs in that time period and her employment history does not indicate any gaps in employment. She reported that she missed 20 to 30 days of work per job, and held each job for two or three years; thus, the Veteran missed on average one to three weeks of work per year per job. Of record is a January 2005 private treatment record indicating that the Veteran had extreme difficulty performing her activities of daily living, and had constant pain. In a February 2005 Correspondence (dated June 30, 2004), the Veteran reported that she had pani that was constant, and had the pain for 13 years that resulted in her “constantly missing work.” She stated she missed a lot of work from being sick, and that it was difficult to get time off for the examinations necessary. In an April 2005 Correspondence, the Veteran stated she lost her job on October 12, 2004 and had not worked since. She stated that she had worked part-time for a month but was let go due to performance issues. She stated she had struggled with jobs since her return from the Army in 1991, and was seeking extraschedular disability ratings. In a separate April 2005 Correspondence (dated January 4, 2005), the Veteran reported a more detailed employment history, detailing her four most recent jobs. In this statement, the Veteran indicated she was laid off from her jobs due to work being slow, but believed it was due to her missing work; left the job for fear of being fired from missing work; having problems with her supervisor and missing work; and missing work, and needing to explain each day that was missed. Of record is a May 2005 notice of determination by the Commonwealth of Pennsylvania Department of Labor and Industry Bureau of Unemployment Compensation Benefits and Allowances (hereinafter “PA Labor Department”). The PA Labor Department determined that the Veteran last worked on April 15, 2005 and was discharged as the result of unsatisfactory work performance. She was working on a probationary period basis and training was necessary and provided to the Veteran. She had been warned about unsatisfactory work performance and worked to the best of her ability. In her August 2005 Informal Claims submission, in pertinent part, the Veteran indicated she had stopped working in October 2004 due to attendance issues. She stated she believed that her service-connected disabilities resulted in loss of her job due to performance. Specifically, she indicates that the PA Labor Department stated that “none of the employers have stated [her lost days from work were]” was the reason for her job termination. The Veteran contended that an employer would not state this due to fear of being sued. In a May 2006 Correspondence submitted by the Veteran, in pertinent part, the Veteran stated that she had symptoms that could be attributed to irritable bowel syndrome, and that employment would require easy and quick access to a bathroom. Symptoms were significant enough to interfere with all activities of daily living and social outings. In a November 2006 letter submitted by the Veteran’s VA doctor, Dr. B.F., Dr. B.F. opined the Veteran was unable to maintain gainful employment due to cognitive symptoms combined with physical disabilities. Dr. B.F. noted that the Veteran was “quite limited in terms of her activities of daily living” and that she avoided public places for prolonged periods due to anxiety related to irritable bowel syndrome symptoms. In a January 2007 letter by the Veteran’s VA doctor, Dr. S.B., Dr. S.B. noted that the Veteran had fibromyalgia, irritable bowel syndrome, and chronic back pain that have led to functional impairment and inability to work. Dr. S.B. noted that her pain and pain medication, as well as physical symptoms, have caused significant functional impairment and have prevented her from holding a job. In a May 2007 Correspondence, the Veteran stated that her service-connected disabilities began to worsen in 2003, resulting in an inability to sit or stand for prolonged periods. She stated that her irritable bowel syndrome symptoms became more severe and her fatigue was debilitating. The Veteran reported that she was missing a lot of work, using all of her available leave days, using unpaid leave days, and tried to work as a real estate agent but could not do so due to her overall malaise. The Veteran contends that her reason for being let go from her last job for “lack of work” was incorrect, and cited opinions submitted form her doctors as to her unemployability. A June 2007 SSA determination found that the Veteran had not engaged in substantial gainful activity since October 12, 2004 and had severe impairments due to chronic fatigue syndrome, fibromyalgia, and asthma. The SSA noted that her chronic fatigue syndrome, fibromyalgia, and asthma caused significant limitation in her ability to perform basic work activities, was unable to perform any past relevant work, and that her skills were industry specific. The SSA noted that a vocational expert testified before an administrative law judge that there were no jobs in the national economy that the Veteran could perform. In May 2008 and August 2009 letters from the Veteran’s VA doctor, Dr. S.B. and her private treatment providers K.G., PA-C and Dr. J.B., they opined that the Veteran’s fibromyalgia and chronic fatigue syndrome alone caused her unemployability. In an October 2009 letter from the Veteran’s private doctor, Dr. J.W., Dr. J.W. opined that the Veteran was unemployable due to the “severity of findings noted in her examination,” dated September 22, 2009. In December 2018, the Veteran’s claim was referred to the Director of Compensation Service for consideration of entitlement to an effective date earlier than August 3, 2005 for the grant of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) by the Board. An administrative review memorandum was issued for the issue of entitlement to an extraschedular TDIU in July 2020. This memorandum noted the Veteran had been granted entitlement to a TDIU on a schedular basis beginning August 3, 2005 and that a grant for an extraschedular basis prior to August 3, 2005 was recommended. Specifically, the memorandum noted that service connection was established for fibromyalgia with fatigue, memory loss, and impaired concentration; irritable bowel syndrome; sleep apnea; and plantar fasciitis. It also noted that the Veteran was found too disabled to work by the SSA as of October 12, 2004, and she had not worked since; and noted the private treatment records and statement from Dr. J.B. from December 2004. The memorandum noted that the SSA decision cited asthma as a disabling factor, but also noted the Veteran was service connected for sleep apnea, which VA evaluates together with asthma, and that her sleep apnea symptoms would be more favorable than the asthma even if asthma were service connected. Additionally, the memorandum noted her conditions and claims for chronic fatigue syndrome, fatigue, memory loss, headaches, chronic sleep impairment, joint pain, and muscle/joint/upper back pain with fatigue and sleep disorder; and that her fibromyalgia, irritable bowel syndrome, sleep apnea were all service connected as of the date of the last employment. The memorandum noted that the fibromyalgia and irritable bowel syndrome conditions had worsened, but did not warrant higher evaluations per the VA rating schedule because she had the highest maximum schedular rating available, and therefore it can be factually ascertained that the earliest date of entitlement to a TDIU was the last day the Veteran engaged in substantial gainful employment activity, which was also within one year of the previous effective date for a grant of increased service connected disability evaluation based on TDIU. Therefore, the memorandum recommended the Director of Compensation Service grant of entitlement to a TDIU on an extraschedular basis, effective October 12, 2004. Nonetheless, in November 2020, the Director of Compensation Service issued an advisory opinion and denied the claim. This opinion noted that the Veteran last worked as a loan processor on October 8, 2004 and that such employment was terminated due to lack of work and not as a result of her disabilities. The advisory opinion noted that the SSA determination that the Veteran was considered disabled due to her chronic fatigue syndrome, fibromyalgia, and asthma, that caused significant limitation in her ability to perform work activities. Additionally, the advisory opinion noted a thorough review of medical information shows the Veteran also had multiple complaints of musculoskeletal pain, that could be related to her fibromyalgia, and that such pains were noted while she was working requiring the Veteran to stand up throughout the day to alleviate the pain. Additionally, the Veteran was noted to experience two to three bowel movements per day with urgency, and required quick and easy access to a bathroom. The advisory opinion conceded that her service-connected conditions did cause functional limitations, but determined that the preponderance of the evidence does not show that the Veteran was unable to obtain or maintain gainful employment due to her service-connected conditions prior to August 3, 2005. Based on the foregoing, and in consideration of the pertinent findings, including the Veteran’s reports that her barriers to employment included her fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome beginning in October 2004, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities beginning October 12, 2004. In this regard, the Veteran has been consistently shown to miss work for doctors’ appointments due to symptoms of her service-connected disabilities, and had significant and severe limitations in the work environment. Specifically, a November 2004 letter submitted by Dr. J.B. indicated that the Veteran’s fibromyalgia, irritable bowel syndrome, insomnia, fatigue, and desert storm syndrome resulted in limitations within the work environment that would likely require some accommodations for her physical and mental limitations. Then, in December 2004, Dr. J.B. opined the Veteran was unemployable due to her constant pain. Additionally, private and VA treatment records beginning in March 2004 show the Veteran missed a significant number of days from work, complained of pain, had difficulty and interference with activities of daily living as a result of her service-connected disabilities. Notably, the Veteran maintained regular full-time employment, without employment gaps of any period, from June 1991 to October 2004, when she became too disabled to work as determined by the SSA. Additionally, the PA Labor Department also determined the Veteran worked to the best of her ability, but still could not perform satisfactorily and was terminated as a result. Following her last day of employment in October 2004, the Veteran’s VA and private treatment providers have submitted several opinions indicating her unemployability as a result of her service-connected disabilities, as discussed above. The Board notes that the July 2020 administrative review memorandum recommending a grant of entitlement to a TDIU on an extraschedular basis beginning October 12, 2004, and the November 2020 denial by the Director of Compensation Services. In its denial, the Director of Compensation Services noted that the Veteran stopped working due to a lack of work and not as a result of her disabilities. However, the Board notes that administrative review memorandum from July 2020, as well as the PA Labor Department determination found that the Veteran performed to the best of her ability, albeit unsatisfactorily. The July 2020 memorandum noted the Veteran’s service-connected disabilities were rated at the schedular maximum, and that they had worsened but could not be assigned higher disability ratings. Additionally, the July 2020 memorandum noted the SSA determination of impairment as a result of asthma would be rated by VA as sleep apnea and that service connection was in effect for sleep apnea at the time of her last employment. Moreover, the November 2020 denial by the Director of Compensation Services did not address the June 2007 SSA determination, and testimony of a vocational expert before an administrative law judge, that there were no jobs in the national economy that the Veteran could perform due to her disabilities. Ultimately, the question of employability is a legal one, not a medical one. The question before the Board is whether the Veteran is unable to obtain and maintain gainful employment consistent with her education and past work history. The Board notes that the Veteran has not worked since October 2004, and was unable to sustain full-time employment thereafter. The Veteran was fired in October 2004 and again in 2005 from a part-time job due to unsatisfactory performance. Essentially, the Veteran has remained unemployed since October 12, 2004. The evidence of record indicates that the continuing severity of her physical limitations due to her service-connected disabilities prevent her from being able to meet the competitive standards for employment. Therefore, based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that she was unable to secure or follow a substantially gainful occupation consistent with her education and work history beginning on October 12, 2004. As such, entitlement to an effective date of October 12, 2004 for entitlement to a TDIU, to include as on an extraschedular basis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Kristy L. Zadora Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.