Citation Nr: 21027115 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-38 891 DATE: May 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2014 is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran was precluded by reason of his service-connected disabilities from obtaining and maintaining any form of gainful employment during the period prior to June 12, 2014. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2014 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from June 1965 to December 1968. A March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), in pertinent part, reopened a previously denied claim for service connection for prostate cancer; denied the reopened claim for service connection for prostate cancer; and denied a claim of entitlement to TDIU. The Veteran timely initiated and perfected an appeal of these issues. A June 2016 rating decision granted entitlement to TDIU effective January 19, 2016 and the Veteran timely initiated an appeal of this decision, seeking an earlier effective date. The Veteran testified as to the TDIU issue before a Veterans Law Judge in September 2018. A Statement of the Case (SOC) relating to the TDIU issue was issued in April 2020 confirming the denial of TDIU prior to January 19, 2016; the Veteran did not file a Form 9 to perfect his appeal of this issue. In July 2020, in light of the procedural history of the Veteran's TDIU claim, and to avoid undue prejudice to the Veteran, the Board exercised jurisdiction over the unperfected appeal as to an effective date for TDIU prior to January 19, 2016, consistent with Beryl v. Brown, 9 Vet. App. 24 (1996); reopened the previously denied prostate cancer claim after de novo review; and granted service connection for prostate cancer. In July 2020 the Board remanded the Veteran's TDIU claim for development and adjudication consistent with its grant of service connection for prostate cancer. In February 2021, the RO granted the Veteran entitlement to an effective date of June 12, 2014 for TDIU. As discussed further below, and as reflected by his July 2016 Notice of Disagreement (NOD), and an October 2018 brief by the Veteran's attorney, the Veteran contends he is entitled to TDIU as early as September 2002. Thus, the February 2021 rating decision does not represent a full grant of the benefits sought on appeal, and the appeal continues. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2014 is denied. Except as otherwise provided, 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 the later. 38 C.F.R. § 3.400. In an October 2018 brief the Veteran, through counsel, contends that he is entitled to an effective date of September 2002 for his grant of entitlement to TDIU, on the basis of a September 2002 claim for an increased rating for a service-connected left wrist disability (variously characterized since the initial grant of service connection in March 1976). The Court of Appeals for Veterans Claims (CAVC) has held that a claim for entitlement to a total disability rating based on individual unemployability (TDIU) is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A March 1995 rating decision reflects the award of a non-service-connected disability pension. Non-service-connected pensions are payable to Veterans who, among other criteria, are permanently and totally disabled from non-service-connected disabilities. 38 U.S.C. § 1521. The Veteran, through counsel, thus argues that the issue of unemployability was raised by virtue of the non-service-connected pension in effect at the time of the September 2002 increased rating claim, and has remained pending since that time. The Veteran's September 2002 increased rating claim for his left wrist was denied in February 2004. The Veteran timely initiated an appeal in March 2004. In April 2013 the Board denied the Veteran's claim for a rating in excess of 10 percent for his left wrist disability as well as a then-pending claim for special monthly compensation (SMC) based on the loss of use of the left hand due to the left wrist disability. The Veteran was notified of the Board's decision by correspondence dated April 19, 2013; the April 2013 correspondence included a date stamped copy of the Board's decision. All Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.100. The Veteran did not appeal the Board's April 2013 decision. At no time during the pendency of his left wrist claim (September 2002 to April 2013) did the Veteran identify entitlement to TDIU as an element of his claim. To the extent such a claim was inferable from the evidence of record during the pendency of the claim, any TDIU claim was terminated upon the denial of the underlying claim for an increased rating for the left wrist disability and associated SMC claim, and remained terminated as the Board's decision became final and no appeal was initiated. The Veteran filed a formal claim for TDIU in October 2013. As noted above, the Veteran has already been granted entitlement to TDIU effective June 12, 2014. Thus, the period on appeal runs from the date of the Veteran's October 2013 claim to June 11, 2014. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such 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. The record reflects that the Veteran's combined disability rating from the date of his October 2013 claim to June 11, 2014 was 80 percent; the underlying disabilities were chronic sinusitis with allergic rhinitis, rated at 50 percent disabling; eczema with dermatitis, solar damage, seborrhea of the face and scalp, xerosis, and scars of the left wrist and right shoulder, rated at 30 percent disabling; a left wrist disability rated at 20 percent disabling; hiatal hernia (also characterized as GERD and/or peptic ulcer) rated at 10 percent disabling; and recurrent ingrown toenail, with a noncompensable rating. The schedular criteria for TDIU are thus satisfied for the period on appeal. In his October 2013 claim, the Veteran reports that he has not worked since approximately 1995. The remaining question is whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining any form of gainful employment during the period on appeal. At his September 2018 Board hearing the Veteran was asked to describe the effect of his disabilities on his ability to work, and the Veteran stated, "between the prostate cancer, my back, with all these rashes and everything else, plus all the medication I was taking, I was unemployable." No grants of service connection for prostate cancer are in effect prior to June 12, 2014 and no back disability has ever been service-connected. The Veteran was afforded VA examinations in May 2013 in relation to his service-connected skin, sinusitis, and ingrown toenail disabilities. The dermatology examiner documented the Veteran's report that his skin disability had "stabilized," and opined that the Veteran's skin disability had no functional impact on his ability to work. Another May 2013 examiner documented the Veteran's report that he was "less efficient" due to chronic congestion, and that he had occasional problems with prolonged standing due to his ingrown toenail. The Veteran's VA treatment records include allergy clinic visits in December 2013 and June 2014, at which time the Veteran was noted to be stuffy or congested. At both visits the Veteran reported that he was "sleeping okay, rarely disturbed by allergies" and that his exercise tolerance was "okay." Providers noted "no skin rash." At a March 2014 VA primary care visit, the Veteran denied chest or abdominal pain. At a May 2014 VA emergency room visit he denied abdominal pain. At a July 2014 primary care visit the Veteran again denied chest or abdominal pain. A February 2015 VA examiner noted normal left wrist range of motion; no tenderness or pain on palpation; and no additional loss of function or range of motion after three repetitions. The Veteran did not report any flare ups of his left wrist disability. In discussing the Veteran's sinusitis, the only sign or symptom the examiner documented was chronic sinusitis detected only by imaging studies; they did not document any episodes of sinusitis, headaches, pain, tenderness, purulent discharge, or crusting. At his September 2019 Board hearing, the Veteran testified that his disabilities in October 2013 were of the same level of severity as in January 2016. In this regard, the Board notes a January 2016 VA examination report documenting the following symptoms of the Veteran's hiatal hernia: symptoms productive of considerable and severe impairment of health; persistently recurrent epigastric distress; dysphagia; pyrosis; reflux; regurgitation; substernal, arm, and shoulder pain; and sleep disturbances caused by esophageal reflux. The Veteran reported to the VA examiner that he had intermittent abdominal pain. The examiner described the impact of the Veteran's hiatal hernia on his ability work as causing problems "with any physical work or bending over type work." VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran is competent to report symptoms and experiences observable to his senses, as he did at his September 2018 hearing with regard to the severity of his symptoms between October 2013 and January 2016. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). However, the Board assigns a high degree of probative weight to the statements made by the Veteran to his treating providers regarding symptoms associated with his hiatal hernia and sinusitis. Statements made for the purpose of medical diagnosis or treatment are exceptionally credible because the declarant has a strong motive to tell the truth in order to receive proper medical care. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board also considers the Veteran's statements at the September 2018 Board hearing concerning the impact of his prostate cancer and a back disability on his employability, disabilities for which service connection is not in effect for the period prior to June 12, 2014. In light of the foregoing, the Board finds that the Veteran was not precluded from obtaining or maintaining gainful employment by reason of his service-connected disabilities for the period prior to June 12, 2014. Accordingly, the criteria for entitlement to a total disability rating based on individual prior to June 12, 2014 have not been met, and the same is hereby denied. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.