Citation Nr: 21025612 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 07-03 191 DATE: April 28, 2021 ORDER Entitlement to an effective date of July 7, 2005, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran submitted a claim for an increased rating for his service-connected left foot disability on July 7, 2005. 2. The Veteran died on November [REDACTED], 2016 and his spouse is a proper substitute claimant. 3. The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment on and after July 7, 2005. CONCLUSION OF LAW The criteria for an effective date of July 7, 2005, but no earlier, for the award of a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.1, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from November 1954 to November 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Prior to his death, the Veteran perfected an appeal for the issue of TDIU. The Veteran died in November 2016. As a matter of law, claims do not survive the death of an appellant. The Veteran’s surviving spouse, however, subsequently and timely requested to be substituted as the appellant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). In September 2017, the RO found the Appellant in this case to be a properly substituted claimant. See September 2017 Supplemental Statement of the Case (SSOC). In a September 2011 decision, the issue of entitlement to a TDIU was initially incorporated into this appeal by the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded for additional development. In a July 2014 decision, the Board denied entitlement to a TDIU. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In November 2014, the Court granted a Joint Motion for Remand (JMR) filed by the parties vacating and remanding the July 2014 Board decision that denied entitlement to a TDIU because the Board did not provide sufficient reasons and bases for its decision. In April 2015, the Board remanded the issue of entitlement to a TDIU. While on remand, in a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU effective December 3, 2015. Despite the grant of a TDIU, the issue remained on appeal the decision did not grant the full benefit sought on appeal. In March 2018, the Board remanded the issue of entitlement to a TDIU prior to December 3, 2015 to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). In a November 2018 decision, the Board granted an effective date of May 29, 2008 for the Veteran’s TDIU. The Appellant appealed the decision to the Court. In an Order dated September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties and remanded the case to the Board. Jurisdiction has been returned to the Board. Entitlement to an effective date prior to May 29, 2008 for the award of TDIU. The Appellant seeks an effective date prior to May 29, 2008 for the grant of a TDIU. Generally, the effective date of an award 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). By way of history, the Veteran filed a claim for an increased evaluation for his left foot disability on July 7, 2005. In an August 2006 statement, the Veteran reported that his pain was severe and he had purchased an electric cart to assist with mobility. In his January 2007 substantive appeal (VA Form 9) of the denial of his July 2005 claim, the Veteran reported complete disability. A September 2011 Board decision determined that a request for TDIU was raised by the record. A request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 C.F.R. § 3.156 (b). If the claimant or the evidence reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted because of that disability. Id. The Veteran’s claim for a TDIU is therefore part of the claim for an increased rating VA received on July 7, 2005. There is no evidence to show the Veteran filed a formal or informal claim for a TDIU prior to July 7, 2005. The Appellant also has not otherwise asserted that the Veteran filed an earlier formal or informal claim. Therefore, the question before the Board is whether a TDIU is warranted between July 7, 2005 and May 28, 2008. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 service-connected disability, this disability should be rated at 60 percent or more; if there are two or more 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. 38 C.F.R. § 4.16 (a) (2019). A claim for a TDIU is considered a claim for an increase. In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of claim. Id. If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled.” While the term substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that takes the claimant’s case outside the norm of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Prior to August 14, 2006, the Veteran was service connected for a left caval varus with mild circulatory impairment at a rate of 10 percent. From August 4, 2006 to May 29, 2008, the Veteran was also assigned a 10 percent disability rating for a lower lumbar or back condition diagnosed as complex regional pain syndrome with degenerative joint disease and a 10 percent rating for a left leg disorder, diagnosed as complex regional pain syndrome. His total disability rating was 10 percent prior to August 4, 2006 and 30 percent thereafter. As such, he did not meet the schedular requirements for a TDIU from July 7, 2005 to May 28, 2008. If a Veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), an extraschedular rating is to be considered by the Director of Compensation Service if the evidence suggests that such Veteran is unable to obtain or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16(b). The Court has held that the Director’s extraschedular decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term in the first instance, the Court clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Pursuant to the requirements of 38 C.F.R. § 4.16 (b), the Veteran’s case was submitted by the AOJ to the VA Director of Compensation Service for extraschedular consideration. A November 2018 Board decision granted TDIU effective May 29, 2008. As noted above, the Appellant disagreed with the Board’s assigned effective date and appealed that decision to the Court. As the Veteran does not meet the schedular criteria for a TDIU prior to May 29, 2008, the Board must consider whether the Veteran nevertheless demonstrated that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (b). After a review of the competent evidence of record, the Board finds that an earlier effective date of July 7, 2005, but no earlier, for the award of TDIU on an extraschedular basis is warranted. The Appellant submitted a detailed Vocational Assessment report by a Vocational Rehabilitation Consultant, F.F., in June 2020. F.F. reviewed the Veteran’s medical records, lay evidence, and claims file. The vocational expert opined that the Veteran’s left caval varus with circulatory impairment rendered him unable to obtain and maintain substantially gainful employment since at least July 2005 and the Veteran’s service-connected back disability precluded his ability to secure and follow substantially gainful employment since at least August 2006. Specifically, F.F. stated that the Veteran experienced severe limitations in his ability to stand and walk due to his service-connected left foot disability. F.F. explained that sedentary work requires sitting for most of the day, and standing and walking occasionally, defined as up to 1/3 of a workday. Based on his review of the record, F.F. stated that the Veteran was unable to ambulate safely and independently of assistive devices due to instability caused by pain. As a result of the Veteran’s physical limitations, his use of a cane or walker for stability, and use of an electric wheelchair would eliminate his ability to use two hands when lifting and carrying, thereby precluding him from most blue-collar manufacturing jobs. Moreover, F.F. stated that the Veteran would be unable to sustain concentration and pace as a result of pain, fatigue, and his need for frequent and subsequent breaks. F.F. opined that employees are only allowed to be “off-task” 10 percent of the day or less in competitive employment. The Veteran’s left foot disability required that he regularly recline with his lower left extremity elevated, and his back disability prevented him from sitting for extended periods of time. The amount of time lost due to his service-connected left foot and back disabilities combined with his impairment in concentration due to distracting pain and fatigue would have rendered him off-task more than would be tolerated by employers. F.F. noted that the Veteran’s employment with L&K Services between 2005 and 2007 is not consistent with substantially gainful employment as he had marginal earnings based on an April 2015 Social Security earnings statement. F.F. opined this was a result of the Veteran’s service-connected left caval varus and lumbar spine condition. F.F. also opined that the skills the Veteran had acquired as a mechanic prior to 1988 would have been “obsolete and antiquated” by 2005 owing to equipment and technical advances and would not have been directly transferable to less physically demanding employment. The Board has also considered an August 8, 2018 VA recommendation by the RO for the grant of a TDIU. The Decision Review Officer reviewed the Veteran’s claims file, including August 2010, September 2010, March 2012, and December 2015 VA examinations, and a Vocational Assessment report from P.C. The August 2018 recommendation noted that the Veteran completed four years of high school and was trained as a mechanic at a trade school in 1960 but did not complete any additional education or training after that time. The Veteran last worked full-time in May 1988. The Veteran performed miscellaneous work from 2001 to 2007, to include mechanic work and deliveries. The August 2018 recommendation referenced a September 2010 VA examination stating that the Veteran had weakness in his left leg and foot, impaired gait, and used a walker or wheelchair to aid his ambulation. The 2010 VA examiner opined the effect of his service-connected disabilities on his occupation included decreased mobility, difficulties with lifting and carrying, lack of stamina, decreased strength, and pain. The March 2012 VA examiner opined that the Veteran’s disabilities would not impact a sedentary position, but each disability limited his physical capacity in varying ways. The August 2018 recommendation also noted that the Social Security Administration found the Veteran’s left hip bursitis, osteoarthritis, spondylosis of the lumbar spine, and left lower extremity radiculopathy rendered the Veteran unemployable on and after June 1, 1987. Ultimately, the August 2018 report recommended that a TDIU should be granted on an extraschedular basis prior to December 3, 2015. The Board has considered an August 2018 determination from the Director stating that the Veteran was not entitled to a TDIU on an extraschedular basis prior to December 3, 2015. That report, however, is no more or less probative than the August 2018 RO recommendation and June 2020 Vocational Assessment report. (Continued on next page) Given the aforementioned, as well as several lay statements submitted by the Veteran’s family and former employer and VA examination reports, the Board finds that the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis from July 7, 2005 to May 28, 2008. As such, an effective date of July 7, 2005, but no earlier, for the award of a TDIU pursuant to 38 C.F.R. § 4.16 (b) is warranted. Ryan Frank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.