Citation Nr: 21023406 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-20 016 DATE: April 20, 2021 ORDER Entitlement to an effective date of February 18, 2015, for grant of a total disability evaluation based on individual unemployability (TDIU) on a schedular basis is granted. REMANDED Entitlement to an effective date prior to February 18, 2015, for grant of a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDING OF FACT The Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment from February 18, 2015. CONCLUSION OF LAW The criteria for an effective date of February 18, 2015, for grant of a total disability evaluation based on individual unemployability (TDIU) have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office. The matter was previously remanded by the Board in a September 2020 decision for additional development, and has now returned for further appellate review. Total Disability Evaluation Based on Individual Unemployability A total disability rating 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 the result of service-connected disabilities. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For purposes of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in 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, 168 (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). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Earlier effective date As entitlement to a TDIU is a form of increased rating claim, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420-21 (1999); Hurd v. West, 13 Vet. App. 449, 451-52 (2000). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period prior to the date of receipt of the claim for increased compensation. Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. If the increase occurred more than one year prior, the increase is effective the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran’s claims folder. Entitlement to an effective date of February 18, 2015, but no earlier, for grant of a total disability evaluation based on individual unemployability (TDIU) on a schedular basis Based upon a thorough review of the Veteran’s file, the Board finds that the probative evidence of record shows that the combination of the Veteran’s service-connected disabilities precludes him from securing and following substantially gainful employment, consistent with his education and occupational background from February 18, 2015. The Veteran was granted TDIU in a June 2020 rating decision effective August 18, 2018. In the September 2020 Board remand decision, the Board noted that the Veteran’s claim for TDIU was predicated on an increased rating claim for the initial evaluation of the Veteran’s service-connected diabetes mellitus and was inextricably intertwined with the evaluation of the Veteran’s service-connected headaches which had not been assigned a rating at the time of the Board decision. Upon remand, the RO denied the Veteran’s claim for an earlier effective date for TDIU in an October 2020 Supplemental Statement of the Case (SSOC). The Veteran predominantly worked as a security guard from 2010 to 2016 and completed three years of high school. The Veteran presently has a combined evaluation of 90 percent effective August 18, 2018, by way of a June 2020 rating decision. The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) at 50 percent from March 7, 2011, and at 70 percent from August 18, 2018; diabetes mellitus type II at 10 percent from March 7, 2011, and at 20 percent from June 14, 2013; peripheral neuropathy of the lower left extremity at 20 percent from April 13, 2019; peripheral neuropathy of the lower right extremity at 10 percent from April 13, 2019; tinnitus at 10 percent from October 6, 2009; and headaches at 50 percent from February 18, 2015, and at zero percent from December 19, 2019. The Veteran’s previous combined evaluations were as follows: 10 percent from October 6, 2009; 60 percent from March 7, 2011; 80 percent from February 18, 2015; and 90 percent from August 18, 2018. As such, the Veteran meets the schedular criteria for entitlement to TDIU from February 18, 2015. 38 C.F.R. § 4.16. As noted above, the Veteran was granted service connection for PTSD at 50 percent from March 7, 2011, and increased to 70 percent effective August 18, 2018. The Veteran’s most recent VA examination regarding the severity of his service-connected PTSD occurred in February 2020. The February 2020 examiner opined that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that the Veteran experienced the following symptoms: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); marked physiological reactions to internal or external cues that resemble an aspect of the traumatic events; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a work like setting. In an April 2019 VA examination regarding the severity of his service-connected PTSD, the Veteran was noted to have the above symptoms, as well as reckless or self-destructive behavior. The Veteran received his initial VA examination regarding the severity of his service-connected PTSD in April 2011. The April 2011 examiner noted that the Veteran experienced the following symptoms at the time of the examination: recurrent and distressing recollections of the event, including images, thoughts or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; this includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; difficulty falling or staying asleep; irritability or outbursts of anger; hypervigilance; exaggerated startle response; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. In an August 2018 correspondence, the Veteran’s private physician noted that the Veteran’s PTSD manifested in the following symptoms: Recurrent and distressing recollections of the event; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affection; sense or foreshortened future; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; flattened affect; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstance, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence. Regarding the Veteran’s service-connected diabetes mellitus, the Veteran was granted service connection at 10 percent from March 7, 2011, and increased to 20 percent from June 14, 2013. The Veteran’s most recent VA examination occurred in February 2020. The examiner noted that the Veteran’s diabetes is managed by oral hypoglycemic agents and results in episodes of ketoacidosis less than two times per month. The Veteran was also noted to not require regulation of activities as part of medical management of diabetes mellitus. The Veteran was also noted to have a restricted diet in February and April 2019 examination reports. Additionally, VA treatment records show that the Veteran is prescribed metformin for treatment of his diabetes mellitus. Regarding the Veteran’s service-connected headaches, the Veteran was granted service connection at 50 percent from February 18, 2015, and reduced to a non-compensable evaluation from December 19, 2019. The Veteran received a VA examination in December 2019. The examiner noted that the Veteran experiences tension headaches with pulsating or throbbing head pain bilaterally which worsens with physical activity and results in sensitivity to light. The Veteran’s headaches were noted to last for less than one day at a time and affect the Veteran’s ability to concentrate. The Veteran was noted to have no characteristic prostrating attacks of migraine/ non-migraine headache pain. In an April 2017 correspondence from the Veteran’s private physician, the Veteran was noted to have the following symptoms: pulsating or throbbing head pain; pain on both sides of the head which worsens with physical activity; sensitivity to light; dizziness; irritability; disturbed concentration; headache lasting 1-2 days at a time; and prostrating attacks occurring more frequently than once per month. The Veteran’s private physician noted that the Veteran’s headaches caused him to miss three or more days of work per month. VA treatment records indicate that the Veteran experiences occasional headaches and takes Tylenol and motrin to alleviate symptoms. Upon review of the foregoing, and affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence of record described above shows sufficiently severe physical and psychological symptomatology due to his service-connected disabilities to render him unable to maintain any substantially gainful occupation consistent with his educational and occupational background as a security guard from February 18, 2015, the date the Veteran first met the schedular criteria for a TDIU. REASONS FOR REMAND Entitlement to an effective date prior to February 18, 2015, for grant of a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is remanded. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology will be considered as one disability. 38 C.F.R. § 4.16 (a). However, where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (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 of Compensation Service. Prior to February 18, 2015, and relevant to the period on appeal, the Veteran’s service-connected disabilities were rated at a total of 60 percent from March 7, 2011. The Board notes that as the present issue of entitlement to a TDIU arose in conjunction with a claim for entitlement to an increased evaluation for service-connected diabetes mellitus type II, the period on appeal is from March 7, 2011. As noted in the above section, the Veteran meets the schedular criteria for a TDIU from February 18, 2015. However, the Board observes that in an April 2011 VA examination regarding the severity of the Veteran’s service-connected PTSD, the examiner noted that the Veteran was unable to “hold a job” and that the Veteran has an explosive temper and “has been unable to get along with coworkers and supervisors.” From the foregoing, the Board finds there is plausible evidence to refer the Veteran’s claim to the Director of Compensation Service for extraschedular consideration for the period on appeal prior to February 18, 2015. The matter is REMANDED for the following action: Refer the claim for entitlement to a TDIU to the Director of Compensation & Pension Service for consideration of an extraschedular TDIU for the period on appeal prior to February 18, 2015. A copy of the Director’s decision must be included in the file. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.