Citation Nr: 21027402 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-55 138 DATE: May 5, 2021 ORDER Subject to the laws that govern the payment of monetary benefits, entitlement to an earlier effective date of September 18, 2014 for total disability rating based on individual unemployability due to service-connected disabilities (TDIU) based upon extraschedular consideration is granted. FINDING OF FACT With resolution of the doubt in his favor, the Veteran's service-connected disabilities made him unable to secure or follow a substantially gainful occupation from September 18, 2014. CONCLUSION OF LAW The criteria to establish entitlement to an earlier effective date of September 18, 2014 for TDIU due to service-connected disabilities based upon extraschedular consideration have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 3.400 (o)(2), 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1982 to August 2002. At an August 2019 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This case was previously before the Board in December 2019, but remanded for additional development. That development having been completed; this claim is once again before the Board. As an initial matter, the Board notes that in April 2021 correspondence the Veteran requested his case be advanced on the docket. Since the Board is now issuing its final decision on his appeal, this request is denied as moot. The Veteran was service-connected for a right ankle disability at 10 percent disabling and psoriasis at a noncompensable rate, effective September 21, 2004, for a combined evaluation of 10 percent. He was later service-connected for a lumbar spine disability at 20 percent disabling, effective January 20, 2011, for a combined evaluation of 30 percent. He submitted a claim for increased ratings for his right ankle disability and lumbar spine disability in April 2013. An April 2014 rating decision continued the 10 percent rating for the ankle and proposed to decrease the lumbar spine rating to 10 percent on the basis of a March 2014 VA examination. The Veteran submitted medical evidence to attempt to avoid the decrease in benefits, however, a November 2014 rating decision effectuated the reduction to 10 percent, effective February 1, 2015. On December 29, 2014, the Veteran telephonically contacted VA and stated that the March 2014 VA examination did not include range of motion testing. He requested a new examination to include range of motion testing in order to stop the reduction of the lumbar spine disability rating. The Regional Office (RO) treated this as a new increased rating claim and in a March 2015 rating decision, (following a March 2015 VA examination) restored the prior 20 percent rating and awarded a 40 percent rating, effective December 29, 2014. This restored the 30 percent combined evaluation from January 20, 2011, and resulted in a 70 percent combined evaluation from December 29, 2014. In April 2015, the Veteran submitted a claim for TDIU which was awarded, effective December 29, 2014, the date of the increased rating claim and the date that the Veteran met the schedular threshold for a TDIU. The Veteran timely appealed the effective date of the TDIU award. The Board finds that the December 29, 2014, communication was not a proper Notice of Disagreement (NOD) with the November 2014 rating decision reducing the lumbar spine disability to 10 percent. Although it was received within a year of the decision and expressed dissatisfaction with the reduction, it was not in writing. See 38 C.F.R. § 20.201 (2014). As such, a decision was rendered in November 2014 on the only active claim for an increased rating (the lumbar spine disability) and it was not appealed. Therefore, TDIU was not on appeal as part of an increased rating claim until the December 2014 claim. The effective date of an evaluation and award of 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 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110 (b)(2) (2012); see also 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). Thus, as a part of the increased rating claim received December 29, 2014, the applicable period on appeal for the TDIU claim extends back to December 29, 2013. The Board notes that in January 2014, the Veteran submitted private treatment records which included a September 2013 functional capacity evaluation by his treating clinician. The clinician determined that the chronicity and severity of the Veteran's condition would not likely render him suitable for gainful employment. This was based upon his service-connected and nonservice-connected disabilities, including arthropathy involving the right ankle and foot, naturally-fused right ankle joint, severe joint pain in his lower legs, gouty arthropathy, back disorder, and multiple sites of osteoarthritis. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). As outlined above, the Veteran's combined disability evaluation was 30 percent as of January 20, 2011. He did not meet the threshold for a schedular TDIU until December 29, 2014. However, if a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. 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 (b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service for extraschedular consideration. Id. In its prior Remand, the Board noted that the evidence establishes that the Veteran ceased employment in 2011. He was awarded Social Security Administration (SSA) disability benefits for diabetes mellitus and osteoarthritis and allied disorders effective July 2011. The Board noted that the September 2013 private functional capacity assessment and the SSA determination found the Veteran to be unemployable due to a combination of service-connected and nonservice-connected disorders. However, as there was evidence that his service-connected right ankle and lumbar spine disabilities affected his ability to maintain employment within the December 29, 2013, to December 29, 2014, timeframe, referral to the Director of Compensation Service was directed. (Continued on the next page) The Director of Compensation Service reviewed the Veteran's claim and found that extraschedular TDIU was not warranted. It was reasoned that while the September 2013 record showed the Veteran's service connected disabilities increased as to render him unemployable, since that was prior to the one year period before the December 2014 claim, that September 2013 assessment could not serve as a basis to award TDIU benefits earlier than December 2014. Importantly, however, that September 2013 document referenced unemployability in the context of both service connected and non-service connected disorders. As such, the Board does not consider itself bound by the Director's conclusion it was service connected disabilities alone which had increased to produce unemployability in 2013. In this regard, the Board observes VA records dated in September 2014, reflect the observation the Veteran needs help walking. This occurred in the context of an encounter that appears to have had a focus on service connected disability. Given that finding, together with the Veteran's education and work history (high school/limousine driver), with the resolution of reasonable doubt in the Veteran's favor, a factual worsening of the Veteran's service connected disabilities is shown as to permit an award of TDIU benefits from the date of the VA record (September 18, 2014.) As such, the Board, after having duly considered the findings of the Direct of Compensation Service memorandum, finds that an extraschedular rating is warranted during the time period prior to December 29, 2014, as the Veteran was shown to be factually unemployed and, despite not meeting the combined rating threshold, medically showed that his disabilities did in fact prevent participation in substantially gainful employment. Accordingly, an earlier effective date of September 18, 2014 for TDIU benefits is warranted, and to this extent the appeal is granted. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.