Citation Nr: 21021823 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-21 393 DATE: April 14, 2021 ORDER An earlier effective date of December 7, 1998, for the establishment of entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT Since December 7, 1998, the Veteran’s service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW As of December 7, 1998, the criteria for a TDIU have been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1979 to June 1983. This matter is on appeal from a May 2000 rating decision that denied the Veteran’s December 7, 1998 claim for a TDIU. A July 2000 statement of the case continued to deny a TDIU, which the Veteran timely appealed in an August 2020 VA Form 9. In a November 2011 Board decision, the Board remanded the claim for a TDIU for further development. In May 2013, the Board again remanded the claim for further development. An October 2014 rating decision granted a TDIU and assigned an effective date of December 3, 2013, which the Veteran appealed. In an October 2018 decision, the Board granted an earlier effective date of November 13, 2008, which was effectuated by a November 2018 rating decision. The Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Joint Motion for Partial Remand (JMPR), the parties stipulated that the October 2018 Board decision with respect to the aforementioned issue should be vacated, and in September 2019, the Court granted the JMPR. In an August 2020 decision, the Board remanded the matter for additional development. The matter has since been returned to the Board. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. As above, the statutory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. 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. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). Consideration may be given to the veteran’s level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Where the percentage requirements for a TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service. Id. Where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant’s case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director, Compensation Service. Id. The Board does not have jurisdiction to assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). On December 7, 1998, the Veteran filed his initial claim for a TDIU, which was denied by a May 2000 rating decision. An October 2014 rating decision granted a TDIU and assigned an effective date of December 3, 2013. An October 2018 Board decision granted an earlier effective date of November 13, 2008, which was effectuated by a November 2018 rating decision. He asserted that he is entitled an earlier effective date for the grant of a TDIU. Prior to November 13, 2008, service connection was in effect for a lumbar spine disorder, rated as 20 percent disabling from January 6, 1999 and rated as 40 percent disabling from September 3, 2004; traumatic brain injury, rated as 10 percent disabling from March 31, 1988; right knee disorder, rated as 10 percent disabling from March 31, 1988; peptic ulcer rated as 10 percent disabling from May 11, 1993; tinnitus, rated as 10 percent disabling from September 9, 1997; and bilateral hearing loss, rated as noncompensable from September 9, 1997. The Veteran's combined disability rating was 50 percent from January 6, 1999; and 60 percent from September 3, 2004. The case was referred to the Director, Compensation Service. In a December 2020 decision, the Director denied entitlement to an extraschedular TDIU. The Director opined that the record presented no evidence that the Veteran was unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities prior to November 13, 2008. In a March 2000 VA form 21-8940, the Veteran indicated that he was a self-employed handyman through 1998, and worked for several companies on a part-time basis, to include Burger King, from 1998-1999. Medical and lay evidence support the Veteran’s assertion that he was unable to obtain or maintain substantially gainful employment since December 7, 1998. He was last employed in April 1999; however, the Veteran’s earnings from 1998 to 1999 were below the poverty line, as he earned $2,597 in 1998, and $2,560 in 1999. The Board finds the Veteran’s employment from 1998 to 1999 marginal, and therefore, not substantially gainful, because his earnings fell below the poverty threshold for those years. Moreover, since filing his claim, the record contains reports of inability to concentrate, memory loss, chronic low back pain, right knee pain, stomach problems, and dizziness and difficulty hearing. Regarding his TBI, a July 1998 VA treatment record notes the Veteran’s report of loss of orientation, purpose, and track of time, while shopping; the examiner noted memory difficulty. A December 1998 VA treatment record notes the Veteran’s non-epileptic spells that impair his awareness and alertness due to his TBI. A March 1999 private treatment record notes the Veteran had frequent memory loss and was accident-prone as a result of his TBI disability. An August 1999 VA outpatient treatment record notes that the Veteran could not drive, climb ladders, work on high structures, or operate machinery due to his service-connected TBI disability. An April 2000 fee-based examination notes that the Veteran’s TBI symptoms were exacerbated by stress. A November 2001 VA examiner noted that the Veteran had difficulty focusing due to his TBI. A December 2001 VA treatment record notes the Veteran’s report to his psychiatrist, that he could not sustain full-time employment due to concentration and memory problems; specifically, he indicated that he experienced dissociative spells three to four times a day. A July 2002 VA treatment record notes the Veteran’s poor memory and his inability to respond to direct questions effectively, as well as his difficulty keeping facts and timelines straight, due to his TBI. A January 2003 VA treatment record includes the physician’s finding that a major concern is the Veteran’s progressive memory and cognitive impairment. The examiner noted that in addition to the Veteran’s inability to learn new information, he experienced difficulty with speech and long pauses due to his inability to recall words. A March 2004 private evaluation notes the Veteran’s short-term memory problems, which include difficulty recalling, both remote and recent. An April 2004 VA examination includes the examiner’s finding that the Veteran suffered from memory lapses and a violent temper. A November 2004 VA examination report includes the examiner’s finding that the Veteran cannot do anything complicated, such as design houses on a computer as he did previously, noting his symptoms of memory problems and slurred speech. A September 2005 fee-based examination report notes ongoing dizziness three times a week, memory loss, and speech problems, due to the Veteran’s TBI. A March 2006 VA treatment record notes the Veteran’s symptoms of dizzy episodes and significant memory problems due to his TBI. A November 2007 VA treatment record shows the Veteran sought treatment for a dizzy spell, as he fell one week ago while attempting to perform yard work. With respect to the service-connected lumbar spine and right knee disabilities, A September 1998 VA treatment record notes the Veteran’s report of constant lumbar spine pain. An April 2000 fee-based examination report notes the Veteran’s right knee symptoms of pain, swelling, locking, and frequent giving way. A July 2000 VA treatment record notes that the Veteran’s report of constant and crippling low back and bilateral knee pain, which made it difficult for the Veteran to walk. A July 2000 VA treatment record shows the Veteran sought treatment for his right knee, as it gave way and he fell. A November 2001 examination report notes the Veteran’s report of excruciating flare-ups of his lumbar spine and right knee that occur monthly and last for days; the examiner noted currently lumbar spine symptoms, including sharp pain, weakness, stiffness, swelling, instability, fatigue, and lack of endurance. An October 2003 VA treatment record notes chronic low back pain and right knee pain. An April 2005 VA treatment record notes ongoing low back pain and right knee pain. A September 2005 fee-based examination report notes monthly incapacitating episodes of the right knee that last for five days; examination revealed pain and decreased endurance. The examiner noted that the effect of the right knee on the Veteran’s daily activities was decreased ability to perform physical tasks. A December 2006 VA treatment record notes the Veteran’s chronic low back pain. A May 2007 VA treatment record demonstrates the Veteran reported knee pain and was given a pamphlet on fall prevention at home. In addition, a March 2006 VA neurological consultation includes the neurologist’s comment that the Veteran remained totally and permanently disabled since the 1990’s, due to his TBI. Likewise, in an August 2014 vocational evaluation report, M.L. opined that the Veteran was unable to maintain substantially gainful employment since 2003. Significantly, in a June 2020 private evaluation, F.F., M.Ed., CRC (vocational expert), opined that it was at least “as likely” as not that the Veteran was unable to secure and follow substantially gainful employment in any occupation regardless of skill or exertional level since September 1997, due to his service-connected disabilities. In providing the opinion, F.F. interviewed the Veteran, and documented an extensive review of the record, including the Veteran’s medical history, as well as his educational and occupational history. Specifically, F.F. detailed the Veteran’s TBI symptoms, and based on the record, found that the Veteran was unable to meet both the mental and physical demands of employment, sedentary or otherwise, since 1997. In sum, the Board finds that a TDIU is warranted as of December 7, 1998, the date the Veteran filed a claim for a TDIU. The evidence demonstrates that the combined effects of the Veteran’s disabilities, particularly his TBI, lumbar spine, and right knee, significantly impact his ability to adapt to a work-like setting, ability to work in a physically demanding occupation, and the ability to work for long periods of time. For these reasons, the Board finds it unlikely that the Veteran was able to obtain or maintain substantially gainful employment since December 7, 1998. Accordingly, entitlement to a TDIU on an extra-schedular basis is warranted since December 7, 1998, and the claim is granted. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.