Citation Nr: 21022020 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-46 462 DATE: April 14, 2021 ORDER Entitlement to an earlier effective date of November 16, 2005, for the grant of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. The Veteran filed an application for a TDIU in January 2005 and asserted that upper and lower extremity peripheral neuropathy prevented him from working; however, he was not service connected for upper extremity peripheral neuropathy at that time. 2. On November 16, 2005, the Veteran filed an informal claim that can be construed as a request for an increased rating for his service-connected diabetes mellitus. As part of the Veteran’s claim, he underwent a neurological evaluation, which revealed bilateral upper extremity peripheral neuropathy. 3. The Veteran was subsequently granted service connection for bilateral upper extremity peripheral neuropathy effective November 16, 2005, in a January 2007 rating decision. CONCLUSION OF LAW The criteria for an earlier effective date of November 16, 2005, for the grant of a TDIU have been met.  38 U.S.C. §§ 1155, 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.321, 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in May 2019, on which occasion the claim was remanded. The claim returned to the Board in March 2020, at which point the claim was denied. However, in June 2020 the Board vacated the March 2020 decision. Entitlement to an earlier effective date of November 16, 2005, for the grant of a total disability rating based on individual unemployability (TDIU). The Veteran asserts that he is entitled to an effective date of November 16, 2005, for the grant of a TDIU, as that is the effective date of his grant of service connection for bilateral upper extremity peripheral neuropathy. (08/25/2020, Third Party Correspondence, p. 2). The current effective date of the Veteran’s TDIU is December 24, 2008. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after 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 U.S.C. § 5110; 38 C.F.R. § 3.400. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.  Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).    In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran was last employed in 2003 as an electrician. (1/25/2005, VA 21-8940, p. 2). His social security administration records indicate that he last earned income in 2003 and his earnings were less than five thousand dollars that year. (08/25/2020, SSA Letter, p. 3). As of November 16, 2005, service connection was in effect for the following disabilities: bilateral open angle glaucoma, diabetes mellitus type 2, left lower extremity diabetic neuropathy, right lower extremity diabetic neuropathy, right upper extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and impotence. His combined rating was 70 percent from November 16, 2005. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a). Therefore, the Board must determine if the aforementioned service-connected disabilities precluded substantially gainful employment during this period.   In this regard, during a September 2006 VA examination, a VA examiner noted bilateral numbness of the lower extremities that was precipitated by prolonged sitting. The numbness was present for 5 to 10 minutes, but would reoccur throughout the day. The Veteran experienced numbness bilaterally in his hands with use and when driving. He reported cramps in the upper and lower extremities that he rated a 6 out of 10 on a numerical pain scale. Episodes of cramping occurred several times a week. Objective findings revealed normal strength in the extremities, but showed hyperalgesia and dysesthesia in the upper and lower extremities. (9/7/2006, VA Examination, p. 2). A December 2008 VA examiner opined that the Veteran’s peripheral neuropathy would limit him to sedentary employment, which the examiner defined as office work. (12/24/2008, VA Examination, p. 20). In August 2020 the Veteran submitted a private vocational report, wherein a private medical expert opined that vision loss and peripheral neuropathy prevented the Veteran from securing gainful employment. In rendering an opinion, the examiner noted the Veteran’s complaints of numbness and pain in the upper and lower extremities that was aggravated by prolonged walking and sitting. The private examiner asserts that the balance and dexterity issues stemming from peripheral neuropathy would prevent him from working in his previous vocational fields. The Board notes that the Veteran’s previous occupational history, i.e. as an electrician and mechanic, were in fields that required fine motor skills. The examiner further asserted that given the Veteran’s peripheral neuropathy was aggravated by activities such as walking and sitting, that he was precluded from “any form of gainful employment, including sedentary positions.” (8/25/2020, Third Party Correspondence, p. 9). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2020 opinion was provided by a private medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Conversely, the VA opinions did not consider the cumulative effect of all the Veteran’s service-connected disabilities in rendering an opinion. The Board thus places more probative weight on the August 2020 medical opinion. (Continued on the next page)   Based on the aforementioned, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected upper and lower extremity peripheral neuropathy and vision loss. The Board notes that an application for TDIU was filed in January 2005, wherein the Veteran argued that upper and lower extremity peripheral neuropathy prevented him from continuing to work as an electrician. (1/25/2005, VA 21-8940, p. 2). Therefore, January 25, 2005, is the date of receipt of the claim for a TDIU. However, the Veteran was not service connected for upper extremity peripheral neuropathy at that time. The Veteran’s grant of service connection for upper extremity peripheral neuropathy became effective November 16, 2005. The Board finds that entitlement to a TDIU arose when the Veteran was granted service connection for upper extremity peripheral neuropathy. Thus, the proper effective date for the grant of a TDIU is November 16, 2005. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.