Citation Nr: 21041086 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-48 822 DATE: July 8, 2021 ORDER Entitlement to an effective date prior to June 8, 2010 for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT TDIU was awarded on June 8, 2010, the date the Veteran was awarded service connection for PTSD, and thus, met the schedular criteria for a TDIU; prior to this date, it was not factually ascertainable that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an effective date prior to June 8, 2010, for the award of TDIU have not been met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1972. A Board hearing was held in November 2019 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board previously remanded this case in January 2020 for referral to the VA's Director of Compensation Service for extraschedular consideration for the appeal period prior to June 8, 2010. The Director of Compensation Service issued an advisory opinion in December 2020. Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an effective date prior to June 8, 2010 for a TDIU The Veteran is seeking an earlier effective date for the award of TDIU. Specifically, the Veteran asserts that the effective date should be December 19, 2009, the last date of full time employment. The law pertaining to the effective date of a VA claim for increase in disability mandates that unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where one disability is ratable at 60 percent or more, or where there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Prior to June 8, 2010, the Veteran was service connected for traumatic brain injury (TBI), evaluated as noncompensable, effective March 17, 1972; Parkinson's Disease, evaluated as 30 percent disabling, effective February 9, 2010; and collateral ligaments, right knee, evaluated as noncompensable prior to February 9, 2010, and 10 percent disabling thereafter. Thus, the Veteran had a noncompensable rating prior to February 9, 2010, and a 40 percent combined rating thereafter. See 38 C.F.R. § 4.25, Table I, Combined Ratings Table. As such, the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) prior to June 8, 2010. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16 (a), the case may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the issue of entitlement to a TDIU on an extraschedular basis was referred to and considered by the Director of the Compensation Service in December 2020, who found that TDIU on an extraschedular basis was not warranted. The Director stated that looking at the evidence prior to June 8, 2010, the evidence does not show residuals of the TBI, nor the Parkinson's (for which a statutory minimum evaluation has been assigned), nor the right knee were of such severity as to prevent employment. As this has been initially reviewed by the Director, the Board may therefore proceed with review of whether the Veteran is entitled to an even earlier effective date for his extraschedular TDIU. By way of background, on February 9, 2010, the Veteran filed an application seeking service connection for Parkinson's Disease and an increased rating for right knee disability. Subsequently, on June 8, 2010, the Veteran filed an informal claim for service connection for PTSD. In March 2012, the Veteran filed an application for TDIU indicating that he was unable to work due to his PTSD, TBI and right knee disability. Importantly, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the February 2010 claim seeking an increased rating for right knee disability can be reasonably construed as a claim for TDIU. There is no indication in the record of any intent to file a claim for TDIU prior to February 2010. Therefore, the Board finds that the Veteran's claim for TDIU was first received by VA on February 9, 2010. Thus, it must be determined whether it became factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment one year prior to this date. See Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2). Here, the evidence of record shows that the Veteran last worked on December 18, 2009. Thus, the Board will determine whether a TDIU on an extraschedular basis is warranted from that date. Based on the evidence of record, the Board finds that the evidence does not show that it was factually ascertainable from December 19, 2009 to June 8, 2010 that the Veteran was unable to obtain or maintain substantially gainful employment. The Board notes that a November 2009 private opinion by Dr. L.R.B. indicated that the Veteran's PTSD interfered with his ability to work. Follow up letters dated in 2010 and 2011 from the same examiner continued to indicate that the Veteran's PTSD and TBI both prevented his ability to work since 2009. Social Security Administration (SSA) records show that the Veteran was found disabled since December 18, 2009 due to his TBI and PTSD. However, importantly, the Veteran was not awarded service connection for PTSD until June 8, 2010. The Veteran was awarded a TDIU at least in part based on his service-connected PTSD. The Court has held that the effective date of an award of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities on which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 236 (2019). Significantly, the clinical records during the applicable time period do not specifically address the functional impairment caused by the Veteran's TBI, right knee and Parkinson's disease. The VA clinical records primarily address the Veteran's PTSD. Although the April 2010 opinion indicated that the Veteran's TBI and Parkinson's also contributed to his inability to work, these findings were still in conjunction with the symptoms caused by his PTSD. The evidence does not show that the Veteran was unemployable during this period due to his service-connected disabilities alone. In sum, the evidence does not show that it was factually ascertainable that the Veteran was unemployable due to his service-connected disorders during the period in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In conclusion, based on the analysis above, an effective date prior to June 8, 2010, for the award of TDIU is not warranted. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.