Citation Nr: 21030979 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 09-47 533 DATE: May 20, 2021 ORDER Entitlement to an effective date of April 19, 2008, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed his increased rating claim received April 19, 2008. From that date he was unable to obtain or maintain substantially gainful employment due to his service-connected conditions. 2. It was not factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected conditions prior to April 19, 2008. CONCLUSION OF LAW The criteria for an effective date of April 19, 2008, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1969 to January 1972. The Veteran appealed an October 2008 rating decision by the Agency of Original Jurisdiction (AOJ). In March 2012, March 2016, January 2017, and November 2020, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the November 2020 Board decision additionally remanded the issue of service-connection for a back condition. A February 2021 rating decision granted service-connection for a back condition. The Veteran has not made further disagreement with the February 2021 rating decision. Therefore, that issue is no longer on appeal. A Board hearing was held in December 2011. A transcript is of record. Entitlement to TDIU was granted in a June 2019 rating decision effective November 6, 2017. A February 2021 rating decision granted an earlier effective date of May 10, 2016. The issue of entitlement to TDIU arose during the course of the Veteran's increased rating claim for his right ear hearing loss. The Veteran's claim was received April 19, 2008. As such, entitlement to TDIU was granted for only part of the period on appeal. Therefore, the Board will address entitlement to TDIU prior to May 10, 2016. 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. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on 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(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Where these percentage requirements are not met, entitlement to benefits on an ES basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an ES total disability rating for compensation purposes based on individual unemployability in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Entitlement to extraschedular (ES) TDIU was denied in a June 2019 decision by the Compensation Service Director. For the entire period on appeal prior to May 10, 2016, the Veteran was service-connected for closed head injury residuals at 50 percent disabling, right knee chondromalacia at 10 percent disabling, and noncompensable bilateral hearing loss and sinusitis. The Veteran worked until May 2000 as a mechanic and had one year of college education. See October 2012 VA Form 21-8940. The June 2008 VA audiological examination noted difficulty hearing with background noise. The July 2008 VA examination report regarding the Veteran's closed head injury noted headaches, constant dizziness, short term memory issues, and a significant effect on the Veteran's occupation causing increased absenteeism and that he can only work part time. The July 2008 VA examination report regarding the Veteran's knee noted limitations with standing and walking and that he used a cane. The July 2008 VA examination report regarding the Veteran's sinuses noted difficulty breathing. The Veteran noted he had difficulty understanding conversations. See December 2011 Board Hearing Tr. at 4. A January 2013 VA opinion noted the Veteran's hearing loss would render the Veteran unemployable in noisy atmosphere's and that his mental disorder may render him unemployable for meticulous forms of employment that required a high degree of education. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran's closed head injury caused issues with the Veteran's mental functioning. The Veteran suffered from headaches, dizziness, and concentration and memory issues. Therefore, as noted by VA clinicians, the Veteran would be unable to perform duties requiring meticulous tasks. Nevertheless, the Veteran did not have training or education in such fields, to include administrative and computer work. The Veteran worked as a mechanic. This would require use of heavy equipment and power tools. However, the Veteran had hearing issues that would prevent him from working in such an environment given safety concerns. Such would be compounded by the Veteran's head injury-related dizziness. Additionally, the Veteran had right knee issues that limited his prolonged standing and mobility. This would impact the Veteran's performance in such a physical labor occupation. The Veteran's mental health complications, decreased hearing, and right knee ambulation issues would also prevent satisfactory performance in customer service positions that required him to work and communicate with other people. As such, the Board finds the Veteran credible as to his functional limitations attributable to the combination of his service-connected conditions. During the one-year look-back period, the evidence does not contain additional medical evidence or other relevant evidence regarding the Veteran's TDIU claim. Although the effective date for an increased rating could potentially be awarded within the one-year period preceding the filing of the claim, if a factually ascertainable increase in the disability actually occurred, the medical and lay evidence of record does not reflect the Veteran's service-connected conditions worsened prior to his increased rating claim, received by the Department of Veterans Affairs (VA) on April 19, 2008. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (2010). As there is no factually ascertainable worsening in the year preceding his claim, the rating assigned herein is effective the date the Veteran's claim was received by VA, which was April 19, 2008. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of April 19, 2008, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.