Citation Nr: 21029675 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-26 823 DATE: May 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, for the period on appeal prior to August 27, 2010 is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the evidence is at least in equipoise that her service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment prior to August 27, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, for the period on appeal prior to August 27, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty form October 1974 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision that granted a TDIU effective August 27, 2010. The claim for TDIU was raised within the context of a January 2008 claim for an increased rating for fibromyalgia. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was scheduled for a hearing but withdrew the request in an April 2019 letter. This matter was previously remanded by the Board in February 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU, to include on an extraschedular basis, for the period on appeal prior to August 27, 2010 The Veteran seeks an effective date earlier than August 27, 2010 for the grant of entitlement to a TDIU, to include as on an extraschedular basis. Initially, the Board notes that the Veteran has been granted entitlement to a TDIU beginning August 27, 2010. The effective date of a grant of service connection is governed by 38 U.S.C. § 5110 as implemented by 38 C.F.R. § 3.400. 38 U.S.C. § 5110(a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Generally, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C. § 5110(a). The implementing regulation specifies than an effective date of an award based upon a claim for increased disability rating "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); 38 C.F.R. § 3.400 (o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). A claim of entitlement to a TDIU 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). While a veteran may submit a separate claim for TDIU, a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial increased rating claim or a regular increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). However, a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In the instant case, the claim for TDIU was raised within the context of a January 2008 claim for an increased rating for fibromyalgia. Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16(a). For the period on appeal prior to August 27, 2010, the Veteran was service connected for fibromyalgia, rated at 40 percent from May 29, 1998. Her combined disability rating was 40 percent. Consequently, the Veteran did not meet the schedular rating for a TDIU prior to August 27, 2010. Even when a veteran does not meet the percentage standards for schedular TDIU, he or she may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Put differently, the Board may consider whether referral to the Director of Compensation Service (Director) for extraschedular consideration is warranted. In the February 2021 Board decision, the issue of entitlement to a TDIU, on an extraschedular basis, was referred to the Director. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his or her education and occupational experience, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also held in Ray that the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray v. Wilkie, at 62; see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director's extraschedular decisions). The Veteran competed a VA form 21-8940 in April 2009, indicating that she last worked in January 2001 as a Home Health Aide. The Veteran reported that she worked for the Alabama Department of Public Health from September 1988 to January 2001. The Veteran stated that she became too disabled to work as a result of her fibromyalgia. The Veteran indicated that she had a high school education, did not attend college, and that she did not have any other additional education or training. Additionally, the Veteran stated that she left her job because she was not able to perform her duties. A March 2000 Social Security Administration (SSA) disability determination noted a primary diagnosis of late effects of cerebrovascular disease and a secondary diagnosis of affective; or mood disorders. The Veteran had an examination for her fibromyalgia in September 2008. The examiner noted that the Veteran's fibromyalgia has gotten progressively worse since onset. The Veteran reported symptoms including trigger points, unexplained fatigue, sleep disturbance, paresthesias, headaches, constipation, alternating diarrhea and constipation, abdominal cramps, abdominal bloating, depression, anxiety, Raynaud's-like symptoms, difficulty concentrating, and musculoskeletal symptoms. The examiner noted that the Veteran had been employed for five to ten years due to her fibromyalgia disability. The Veteran reported that she was previously employed as a home health aide. The examiner noted that the Veteran's fibromyalgia had severe effects on usual daily activities such as chores, shopping, and traveling and moderate effects on bathing, dressing, toileting, and grooming. Medical treatment records from December 2008 note that the Veteran's fibromyalgia pain affects her ability to function by affecting her sleep, mood, general activity, ability to concentrate, social interaction, and self-image. In a Medical treatment record from February 2009, Dr. R.B. stated that the Veteran had been coming to the clinic for multiple medical problems. Dr. R.B. further stated that the Veteran is unable to keep gainful employment due to her medical conditions and that she has been unemployed since 2001. A May 2009 VA form 21-4192 noted that the Veteran was previously employed as a home health aide from April 1990 to May 2001. It was further noted that the Veteran was a contract worker and that her hours varied based on need. Additionally, it was noted that the Veteran resigned from her position. As addressed above, the Veteran did not meet the schedular rating for TDIU prior to August 27, 2010. As such, entitlement for a TDIU based on an extraschedular consideration was implicated, and in February 2021, the Board remanded the claim finding the Veteran provided some evidence sufficient to warrant referral to the Director, for extraschedular consideration of a TDIU. An administrative review memorandum was issued for the issue of entitlement to an extraschedular TDIU in February 2021. This memorandum noted the Veteran had been granted entitlement to a TDIU on a schedular basis beginning August 27, 2010 and that a grant for an extraschedular basis prior to August 27, 2010 was recommended. Specifically, the memorandum noted that service connection was established for major depressive disorder and fibromyalgia. It also noted that the Veteran last worked in approximately 2001 and the evidence of record prior to August 27, 2010 indicated the Veteran's service-connected fibromyalgia prevented the Veteran from working. Additionally, the memorandum noted that while a May 2001 SSA determination does not list fibromyalgia as a primary or secondary diagnosis, VA medical records prior to August 27, 2010 indicate the Veteran's fibromyalgia pain was constant and affecting her ability to move and perform activities of daily living. The memorandum specifically noted a September 2008 VA examination for fibromyalgia, which found the Veteran's fibromyalgia had severe effects on usual daily activities such as chores, shopping, and traveling, and moderate effects on bathing, dressing, toileting, and grooming. Furthermore, the memorandum noted that the Veteran contends she has not worked since 2001 for Alabama Department of Public Health and cannot obtain substantially gainful occupation due to service-connected disabilities of fibromyalgia and/or major depressive disorder. Therefore, the memorandum recommended the Director of Compensation Service grant of entitlement to a TDIU on an extraschedular basis, prior to August 27, 2010. Nonetheless, in a March 2021 determination, the Director considered the Veteran's record and concluded that the evidence of record does not demonstrate that the Veteran's service-connected disabilities, or a combination of the effects of those disabilities, prevented employment prior to August 27, 2010. The Director indicated that the Veteran has a high school education with work experience as a home health aide. The Director further noted that the evidence shows that the Veteran last worked full-time in 1998. Further, the Director noted that the VA form 21-8940 received in 2009, shows no attempt to obtain sedentary work since 2001. The Director considered the Veteran's lay statements but gave greater weight to the objective medical evidence of record. Additionally, the Director noted that the SSA granted disability entitlement for non-service-connected conditions. The Director concluded that although there are limitations due to the Veteran's fibromyalgia, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment, noting that the evidence does not demonstrate that the Veteran is incapable of performing the mental and physical acts required by employment. Ultimately, the evidence of record failed to support that the Veteran's service-connected disabilities caused an exceptional situation that prevented gainful employment prior to August 27, 2010. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities rendered her unable to secure and maintain substantially gainful employment for the period on appeal prior to August 27, 2010. As such, entitlement to a TDIU is warranted on an extraschedular basis. The Veteran has mobility issues due to her service-connected fibromyalgia. Specifically, the Veteran's fibromyalgia pain is noted to impact her ability to conduct activities of daily living including bathing, dressing, toileting, and grooming. Furthermore, the Veteran's fibromyalgia symptoms included sleep disturbances, headaches, and difficulty concentrating. The Board finds that the Veteran's fibromyalgia symptoms would significantly limit her ability to do physical labor for extended periods of time. Moreover, the Veteran's fibromyalgia symptoms would also significantly impair her ability to concentrate and work well with others in a less physically demanding occupation. Additionally, based on the Veteran's employment history and level of educational attainment, it seems unlikely that the Veteran possesses sufficient transferrable skills that would enable her to secure or maintain employment. Based on the totality of the evidence, the Board finds that the Veteran was unable to secure or maintain a substantially gainful occupation due to her service-connected fibromyalgia disability during the period prior to August 27, 2010. The Board notes that the February 2021 administrative review memorandum recommending a grant of entitlement to a TDIU on an extraschedular basis for the period on appeal prior to August 27, 2010, and the March 2021 denial by the Director of Compensation Services. In its denial, the Director stated that there was no evidence of inability to perform sedentary employment due to service-connected conditions prior to August 27, 2010. However, the Director did not specifically address the medical treatment note from December 2008 that indicates the Veteran's fibromyalgia pain affects her ability to function by impacting her sleep, mood, general activity, ability to concentrate, social interaction, and self-image. Ultimately, the question of employability is a legal one, not a medical one. The question before the Board is whether the Veteran is unable to obtain and maintain gainful employment consistent with her education and past work history. The Board notes that the Veteran has not worked since 2001 and was unable to sustain full-time employment thereafter. The evidence reflects that the Veteran resigned from her position as a home health aide in 2001 due to her fibromyalgia pain. The evidence of record indicates that the continuing severity of her physical limitations due to her service-connected disabilities prevented her from being able to meet the competitive standards for employment during the period on appeal prior to August 27, 2010. Therefore, based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that she was unable to secure or follow a substantially gainful occupation consistent with her education and work history during the period on appeal prior to August 27, 2010. As such, entitlement to a TDIU prior to August 27, 2010, to include on an extraschedular basis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.