Citation Nr: 21028165 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 08-22 938 DATE: May 10, 2021 ORDER Entitlement to an effective date prior to May 6, 2003, for the grant of a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities, to include on an extraschedular basis, is granted. Entitlement to an effective date prior to May 6, 2003, for the grant of Dependents' Educational Assistance (DEA) under Chapter 35, is granted. FINDING OF FACT The competent evidence establishes that the Veteran's service-connected type 2 diabetes mellitus, hypertension, and bilateral upper extremity neuropathy have rendered him unable to obtain or maintain a substantially gainful occupation since November 13, 2002. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU on an extraschedular basis, effective November 13, 2002, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.340, 3.341, 4.16. 2. The criteria for entitlement to an effective date of November 13, 2002, for the grant of Dependents' Educational Assistance, have been met. 38 U.S.C. §§ 1155, 5107, 5113, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded by the Board in November 2006, August 2010, October 2013, November 2016, and February 2018 for further development. In a January 2020 decision, the Board denied entitlement to an effective date prior to May 6, 2003, for the grant of TDIU and an award of DEA under Chapter 35. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the claim to the Board for further action. The JMR noted that the Board failed to sufficiently address whether the Veteran's service-connected disabilities alone prevented employability, prior to May 6, 2003. The JMR also noted that the issue of entitlement to an earlier effective date for the award of DEA under Chapter 35 was dependent on the issue of entitlement to an earlier effective date for the grant of TDIU and must be addressed together. Earlier Effective Date TDIU The Veteran seeks entitlement to an effective date earlier than May 6, 2003, for the award of a TDIU. In a memorandum received in January 2012, the Veteran contends that his effective date should be from November 13, 2002, which is the effective date for the award of service connection for his type II diabetes mellitus, hypertension, and bilateral upper extremity neuropathy. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). There is a procedural distinction in the adjudication of TDIU claims based upon whether the criteria for schedular consideration are met under 38 C.F.R. § 4.16(a), or whether the claim must be reviewed on an extraschedular basis under 38 C.F.R. § 4.16(b). TDIU may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of one disability rated as 60 percent in 4.16(a), disabilities of one or both lower extremities, including the bilateral factor if applicable, will be considered as one disability. 38 C.F.R. § 4.16 (a)(1). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The effects of medications, if any, are relevant. Mingo v. Derwinski, 2 Vet. App. 51 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the CAVC discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, to receive TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individual's ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The effective date of an award of a TDIU will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (o)(1). The effective date of an award of a TDIU may also be established at the earliest date as of which it is factually ascertainable that an increase in disability causing unemployability had occurred, if the application for a TDIU is received within one year from that date. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Effective November 13, 2002, the Veteran was awarded service connection for type 2 diabetes mellitus rated as 20 percent disabling, hypertension rated ast 10 percent disabling, right upper extremity neuropathy rated as 10 percent disabling, and left upper extremity neuropathy rated as 10 percent disabling. He was also awarded special monthly compensation for loss of use of a creative organ. All of these disabilities result from a common etiology, and are therefore considered in combination for the purposes of determining TDIU. 38 C.F.R. § 4.16(a)(2). His combined disability rating for the relevant time period is 50 percent. See 38 C.F.R. § 4.25. Therefore, prior to May 6, 2003, the Veteran's combined service-connected disabilities did not render him eligible for TDIU under the scheduler percentage requirements contemplated by VA regulations. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board may only consider these disabilities in the analysis, and not additional disabilities such as coronary artery disease, bilateral lower extremity neuropathy, and cataracts which became service-connected on or after May 6, 2003. Thus, the Veteran does not meet the schedular criteria for TDIU eligibility under 38 C.F.R. § 4.16(a) prior to May 6, 2003, and the Board may only consider extraschedular entitlement. As addressed below, the AOJ has already sought an advisory opinion from the Director of Compensation Service which is required for extraschedular consideration. See 38 C.F.R. § 4.16(b). An April 1999 VA treatment record documented that the Veteran was a former electrician and worked until June 1998. In his January 2002 Application for TDIU, the Veteran reported that he last worked in June 1997. He indicated that he had chronic low back pain and was too nervous, jumpy, depressed, and forgetful to continue his job, and that he was awarded social security administration (SSA) disability benefits right away. He indicated that he had previously worked in construction, steel manufacturing, and that he had owned a cable burying business as well as a bait and tackle shop. With regard to education, the Veteran reported completing high school, and that he had not had any other education or training before he became too disabled to work. In a September 2001 VA treatment record, the Veteran reported having been dizzy for two days. After his neighbor did a fingerstick evaluation, the Veteran consumed foods with sugar and felt much better. At the time, the Veteran was noted to be borderline diabetic. In a May 2004 VA examination for hypertension, the examiner noted that the Veteran did not have any significant complications of diabetes except for neuropathy. The examiner also did not find any significant complications with hypertension. In a September 2007 VA examination, the examiner noted that although the Veteran's diabetes was well controlled and would not be a factor in his ability to work more so than any other person with diabetes, he might miss work occasionally due to hypoglycemic episodes. The examiner also noted that the Veteran might have to miss work for having mild, weakening, or blurred vision, or having slight dizziness episodes. The examiner also noted that the Veteran would need to have reasonably quick access to bathroom facilities and that he should not be in positions where he has to climb stairs frequently, be on elevated platforms, or be responsible for other people's health or welfare. The examiner also noted that the Veteran could not participate in lifting, hauling, or other types of strenuous exercise, and that he could not be outside in hot environments. He would also need to have space for breaks. With regard to upper extremity neuropathy, the examiner noted that the Veteran would have difficulty holding small objects, using tools or implements, lifting objects greater than five pounds or over his head, and climbing ladders. With regard to hypertension, the examiner noted that the Veteran should not be sitting for prolonged periods of time, have no restrictions on leaving his work area for breaks, and should not be on an elevated platform or climbing stairs. The examiner also noted that the Veteran should have the availability of time off for leaving work due to illness, seeing physicians, or missing work frequently. An October 2019 Advisory Opinion by the Director, Compensation Service, noted that the Veteran was found to be disabled beginning October 18, 1999 and received benefits for a spine condition which is not service-connected. The Director indicated that the Veteran's diabetes, hypertension, and neuropathy were well-controlled at the time of a December 2003 VA examination. The Director concluded that review of VA medical treatment notes and examinations prior to May 6, 2003 did not effectively demonstrate that the Veteran's service-connected disabilities would have solely impacted his ability to maintain substantially gainful employment. In addition, there was no evidence the symptoms and severity of the service-connected disabilities were not adequately addressed under the rating schedular criteria during this retroactive timeframe. Therefore, entitlement to TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b), prior to May 6, 2003, was denied. The Board notes that the Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Board resolves reasonable doubt in favor of the Veteran, and finds that his service-connected type 2 diabetes mellitus, hypertension, and bilateral upper extremity neuropathy rendered him unable to obtain and maintain substantially gainful employment prior to May 6, 2003. September 2001 VA treatment records document that the Veteran was already experiencing dizziness due to his diabetes. Moreover, keeping in mind the Veteran's past work experience and high school level education, the extensive functional limitations outlined by the September 2007 VA examiner would significantly hinder the Veteran's ability to obtain substantially gainful employment. The Veteran would also be prevented from engaging in sedentary employment, as the September 2007 examiner noted that the Veteran could not sit for prolonged periods of time. While the Director of Compensation Service emphasized that the Veteran had initially stopped working due to non-service-connected disabilities, she did not consider the extensive functional limitations outlined by the September 2007 examiner. In addition, while the September 2007 VA examiner ultimately concluded that the Veteran would probably be able to work, that opinion was given provided that the conditions outlined in the opinion were met. In considering the evidence in totality, including the Veteran's work history and education level, the Board finds that his service-connected disabilities would have rendered him unable to obtain or maintain a substantially gainful occupation prior to May 6, 2003. Therefore, resolving reasonable doubt in the Veteran's favor, the Veteran is entitled to extraschedular TDIU effective November 13, 2002. Based on the evidence of record, the Board first finds that, as a matter of law, the Board may not consider entitlement to TDIU prior to November 13, 2002 because the Veteran was not service-connected for any disability prior to that date. In this regard, the Board notes that the Veteran submitted an informal claim for TDIU that was received in October 2001, and then a VA Form 21-8940, Application for Increased Compensation Based on Unemployability that was received in January 2002. Even though the Veteran submitted a claim for TDIU prior to November 13, 2002, a grant of TDIU can only be based on consideration of service-connected disabilities. As the Veteran was not service-connected for any disability prior to November 13, 2002, as a matter of law, there is no basis upon which to assign an effective date for TDIU prior to that date. Earlier Effective Date DEA Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501; 38 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of Dependents' Educational Assistance exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). With respect to this matter, because entitlement to TDIU has been established from November 13, 2002, the effective date for entitlement to eligibility for educational assistance under Chapter 35 is also granted from that date. Accordingly, an earlier effective date of November 13, 2002, is granted as a matter of law. Sabonis, 6 Vet. App. at 426. J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.