Citation Nr: 21040618 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-32 130 DATE: July 6, 2021 ORDER Entitlement to an effective date earlier than April 27, 2012, for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to April 27, 2012, the Veteran did not have sufficient ratings for his service-connected disabilities to meet the schedular rating requirements for a TDIU, and the preponderance of the evidence is against finding that at the time they precluded him from obtaining or maintaining substantially gainful employment when considering his level of education, prior work experience and training. CONCLUSION OF LAW Prior to April 27, 2012, the criteria were not met for entitlement to a TDIU, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to October 1977. This appeal to the Board of Veterans' Appeals (Board) originated from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) confirming and continuing the existing ratings for left shoulder and left foot disabilities and denying service connection for a back disability. In appealing for higher ratings for the left shoulder and left foot disabilities, the Veteran testified at a hearing in December 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. And, because of that hearing testimony, the Board determined there also was a derivative claim for a TDIU. See Rice v. Shinseki, 22 Vet. App., 447, 453-54 (2009). A January 2016 RO decision since issued granted this derivative TDIU claim, retroactively effective as of April 27, 2012. A February 2018 Board decision granted a higher rating for the left shoulder disability but remanded the claim for a higher rating for the left foot disability back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. A February 2020 Board decision since issued also granted a higher rating for the left foot disability at least for the initial period that was at issue prior to April 27, 2012, though conversely denied a higher rating for this left foot disability from that date onwards. The Veteran appealed the Board's February 2020 decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC), to the extent it had not considered awarding a TDIU for the entire period on appeal, so since the December 16, 2008 claim for increased ratings that had led to the derivative issue of TDIU entitlement. In March 2021, the contesting parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, vacating the portion of the Board's decision that had failed to address whether a TDIU is warranted for the entire period on appeal (i.e., since December 16, 2008 rather than just since April 27, 2012). The Court remanded this claim back to the Board for adjudication in compliance with the agreement in the JMPR. Entitlement to an effective date earlier than April 27, 2012, for the TDIU The period now under review as concerning this claim is whether this benefit was warranted from December 16, 2008 rather than just since April 27, 2012. The issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 452. 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or singly bodily system are treated as one, collective, disability. 38 C.F.R. § 4.16(a). Here, though, for the period at issue prior to April 27, 2012 (i.e., from December 16, 2008 through April 26, 2012), the Veteran had the following service-connected disabilities and corresponding ratings for them: left shoulder disability, rated as 30 percent disabling; left foot disability, rated as 10 percent disabling; and a back disability, also rated as 10 percent disabling. The combined rating for these service-connected disabilities was 40 percent, so considerably less than the required 70 percent combined rating required by 38 C.F.R. § 4.16(a). See also 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Moreover, as these disabilities do not derive from common etiology, they cannot be considered as one collective disability. Moreover, even if they could be, the Veteran still would not have the requisite 60 percent rating to warrant considering his TDIU claim on a schedular basis under § 4.16(a). In this regard, it is important to bear in mind that, although the Veteran also now has other service-connected disabilities including right and left lower extremity radiculopathy owing to (i.e., associated with) his back disability, with separate 40 percent ratings for each lower extremity, also a depressive disorder with anxiety associated with his left shoulder disability, which is rated as 30-percent disabling, and a scar associated with his left shoulder disability, which is rated as 10-percent disabling, these other disabilities have an effective date and corresponding rating on or after April 27, 2012. So, for all intents and purposes, they do not factor into whether he was unemployable because of service-connected disability prior to April 27, 2012. It is also VA's policy, nonetheless, 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). Thus, even when, as here, the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion the Veteran is unemployable due to service-connected disability for the time in question. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). That said, the Board has no legal authority to grant a TDIU on an extra-schedular basis in the first instance so for this period at issue prior to April 27, 2012. See Barringer v. Peake, 22 Vet. App. 242 (2008). The most the Board could do in this circumstance is refer this claim to the Director of the Compensation Service for this initial consideration. But the Board is not precluded from deciding whether this referral is warranted, though the Board does not find that it is in this instance. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, after considering both economic and noneconomic components, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to April 27, 2012. As discussed in the March 2021 JMPR, the Board must evaluate whether the Veteran was entitled to a TDIU from the date of his increased rating claim, i.e., the date on which his derivative TDIU claim arose. The increased rating claim initiating this appeal which initially requested increases in his left shoulder and left foot ratings, also service connection for his back disability as mentioned was filed in December 2008. The review period, therefore, dates from the year prior, meaning since December 2007, at least as concerning the increased rating claims because that immediately preceding year also is in play in the context of a claim for an increased rating. See Harper v. Brown, 10 Vet. App. 125 (1997) (according to 38 C.F.R. § 3.400(o)(2), if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable"); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Moreover, the Court has held that the rules governing the assignment of a TDIU effective date are the same as those governing an increased-rating claim because a TDIU claim is a type of increased-rating claim (i.e., a claim for increased compensation). See Hurd v. West, 13 Vet. App. 449 (2000). Records show the Veteran was in physical therapy for his left shoulder disability through July 2008, so until a relatively few months before filing his claim for an increased rating in December 2008. All three disabilities (left shoulder, left foot, and back) were evaluated during a February 2009 VA examination. The first record after December 2008 is the February 2009 VA examination, during which the examiner found near-normal range of motion of the Veteran's left shoulder, albeit with pain on motion. The examiner found joint function reduced on repetition due to pain, fatigue, lack of endurance, and incoordination. The Veteran reported weakness and "giving away," but not stiffness, swelling, or other symptoms. He reported being unable to lift heavy objects, work above shoulder level, and flare ups consisting of pain in the shoulder, twice weekly, for an hour or two, but relieved by medication. He denied functional loss and did not mention any impact on his employment, either then currently or prior. In October 2008, again just before filing his claim, the Veteran sought treatment for left foot pain during the prior month, worse with use, but relieved by medication. He did not attribute it to any trauma or event. The February 2009 VA examiner observed no pain, tenderness, or abnormal physical findings referable to this foot. The Veteran reported pain elicited by physical activity but sometimes occurring at rest again, though, relieved by medication, also without swelling, fatigue, or other symptoms. As well, he denied any functional impairment due to his left foot disability. In October 2009, he reported that his left foot pain prevented him from exercising. As concerning the back disability, the February 2009 VA examiner found normal range of motion of the Veteran's thoracolumbar spine, albeit with pain on motion. The examiner found pain to have a major impact on repetitive use, with symptoms including fatigue, weakness, lack of endurance, and incoordination. However, there was no additional range of motion loss on repetition. He did not note any muscle spasm or guarding. However, the Veteran reported muscle spasms and pain, brought on by activity, and partially relieved by medication. He also reported using a transcutaneous electrical nerve stimulation (TENS) unit and receiving trigger point injections. He denied functional impairment from the condition. In January 2010, he reported cracking his back while bending over, resulting in recurrent pain, soreness, and tightness. He also received treatment in June 2011 for muscle spasms in his back. There accordingly is no suggestion on record that, prior to April 27, 2012, the Veteran's service-connected left shoulder, left foot, and/or back disabilities precluded substantially gainful employment, meaning above and beyond what is contemplated by the ratings assigned for these service-connected disabilities. 38 C.F.R. §§ 4.1, 4.15. The disability rating itself (for the service-connected disability) acknowledges the disability affects or impairs the Veteran's earning capacity; this is intrinsic to the rating for the disability. Id. Moreover, generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. So, put another way, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, while none of the records cited above discuss job loss or limitation, including past difficulties, treatment notes from October 2007 and before then clarify that the Veteran did not return to work after open heart surgery in March 2005. These notes invited him to provide whatever forms he needed regarding employment and his cardiac condition, without further detail. The claims file further reflects that he completed two years of college and had several jobs after service. The record does not indicate that his service-connected disabilities were involved in any of his job changes. When he stopped working in March 2005, he had been a shipping company delivery driver, and his heart surgery was not owing to a service-connected heart disability. Thus, according to this evidence, the Veteran was unemployed due to disability that was not service connected (i.e., not related to or the result of his service); for the period at issue prior to April 2012, it is not suggested that his service-connected disabilities precluded him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. Further, and notably, the record in this case offers evidence of him losing time from work because of non-service-connected disabilities which, as explained, cannot serve as basis or grounds for granting a TDIU (or extra-schedular referral) since not attributable to his military experience. The Veteran's VA examinations and treatment notes do not reflect inability to perform a substantially gainful job due to his service-connected disabilities. His medical examinations did not specifically limit labor-intensive jobs and certainly not those less labor intensive so including doing the driving or similar that he had done until stopping work in March 2005; rather, he denied functional limitations due to two of the three service-connected disabilities during his February 2009 VA examination. Nothing on record precludes sedentary or other types of less physically demanding work consistent with his level of education and prior occupational experience, which often has not involved physically demanding labor. In sum, the Veteran's service-connected disabilities, together or separately, did not preclude him from obtaining and maintaining substantially gainful employment prior to April 27, 2012. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thus, the Board declines to refer this claim to the Director of the Compensation Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.