Citation Nr: 21041700 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-35 976A DATE: July 9, 2021 ORDER An initial rating in excess of 20 percent for cervical strain is denied. An initial rating in excess of 10 percent for right ankle strain is denied. A total disability rating based on individual unemployability (TDIU) effective July 14, 2015 is granted. FINDINGS OF FACT 1. Over the entirety of the period on appeal, the Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Nor has the Veteran been found to have had any incapacitating episodes of intervertebral disc syndrome (IVDS) requiring prescribed bed rest. Additionally, the Veteran's range of motion for forward flexion of the cervical spine has not been shown to be functionally limited to 15 degrees or less. 2. Over the entirety of the period on appeal, the Veteran has never been found to have ankylosis of the right ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Additionally, the Veteran's dorsiflexion has never been limited to 5 degrees or less, nor has his plantar flexion been limited to 10 degrees or less. 3. The Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5237. 2. The criteria for an initial rating in excess of 10 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107, 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5010-5271. 3. The criteria for a TDIU effective July 14, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1972 to September 1992. The matter is on appeal before the Board from September 2014 and December 2015 rating decisions. The Board previously remanded the issues for further development in November 2018. The development has been completed and the appeal has returned to the Board for further adjudication. The Board notes that during the pendency of the appeal, the Veteran was granted service connection for major depressive disorder, degenerative arthritis of the right knee, and degenerative arthritis of the left knee in a July 2020 rating decision. The grant of service connection for these three issues constitutes a full grant of the benefits that were sought on appeal, and as such those issues are no longer before the Board. Increased Rating 1. Initial Increased Rating Cervical Strain Procedurally, the Veteran was granted service connection for cervical strain in a September 2014 rating decision, with a 20 percent evaluation effective March 6, 2013, the date VA received the Veteran's claim. The Veteran filed a Notice of Disagreement (NOD) in July 2015, in which he disagreed with the initial 20 percent evaluation. After the issuance of a Statement of the Case (SOC) in July 2016, the Veteran filed a Form 9 Appeal to the Board in August 2016. As previously noted, the Board remanded the issue in November 2018 to provide the Veteran with an additional VA examination. The VA examination was completed, and in July 2020 a Supplemental Statement of the Case (SSOC) was rendered. Development is completed, and the issue has returned to the Board for further adjudication. Applicable Law The Veteran's cervical strain is rated under DC 5010-5237. Cervical spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. Over the period on appeal, the Veteran has been provided with four VA examinations pertaining to his cervical strain. At no time during the entire period on appeal, has the Veteran been found to have IVDS with incapacitating episodes, been prescribed bed rest to treat his cervical strain, or reported any incapacitating episodes pertaining to his cervical strain. As such, the Veteran's cervical strain will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. Effective February 7, 2021, the DCs pertaining to the cervical spine were amended. The applicable rating criteria for the DCs regarding the spine did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). Analysis A review of the Veteran's record over the entire period on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. The Veteran underwent VA examinations pertaining to his cervical strain in May 2014, June 2014, May 2016, and December 2019, and none of the examiners found the Veteran to have ankylosis of the spine. In addition, the Veteran's VA treatment records do not reflect that he has ever been diagnosed with ankylosis of the spine. A rating in excess of 20 percent is not warranted at any time over the entirety of the period on appeal. A review of the record over the entire period on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Neither has his forward flexion of the cervical spine ever been limited to 15 degrees or less. The Veteran underwent VA examinations pertaining to his cervical strain in May 2014, June 2014, May 2016, and December 2019. The four examinations show that ankylosis of the cervical spine was absent. Forward flexion of the Veteran's cervical spine was not shown to be limited to 15 degrees or less during any of the examinations. The Veteran's range of motion for forward flexion was limited at its most to 30 degrees during the May 2014 examination, 25 degrees during the June 2014 examination, 45 degrees during the May 2016 examination, and 40 degrees during the December 2019 examination. Except for the May 2016 examination, these findings take into account pain on motion, repetitive use, repeated use over time, and flare-ups. Thus, at its worst, the Veteran's forward flexion was limited to 25 degrees. In the June 2014 VA examination, the examiner found that the Veteran's forward flexion was initially limited to 40 degrees, however, when pain was accounted for with flare-ups or with repeated use over time, the examiner estimated that the Veteran's range of motion would be limited by a loss of an additional 15 degrees. Thus, his range of motion with forward flexion of the cervical spine would be limited to 25 degrees due to pain during flare-ups or with repeated use over time. A review of the Veteran's VA and private treatment records reflects complaints and treatment of pain in conjunction with the Veteran's neck, however, they do not provide any findings of any greater significance pertaining to ROM than those relayed in the above VA examinations. Thus, a rating in excess of 20 percent for the Veteran's cervical strain for the entirety of the period on appeal is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's cervical strain. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). It is the Veteran's painful motion with functional loss, which provides the Veteran with a 20 percent rating for his cervical strain. Even when limitations from pain, lack of endurance, and repetitive motion, are factored in, the Veteran's motion was estimated to be limited at most to 25 degrees for forward flexion. As such, it has not been shown that functional limitations limited the Veteran's range of motion to an extent as to warrant a rating in excess of 20 percent at any time over the entirety of the period on appeal. Accordingly, an initial rating in excess of 20 percent for cervical strain is denied. 2. Initial Increased Rating Right Ankle Strain Procedurally, the Veteran was granted service connection for right ankle strain in a September 2014 rating decision, with a 10 percent evaluation effective March 6, 2013, the date VA received the Veteran's claim. The Veteran filed a NOD in July 2015, in which he disagreed with the initial 10 percent evaluation. After the issuance of a SOC in July 2016, the Veteran filed a Form 9 Appeal to the Board in August 2016. As previously noted, the Board remanded the issue in November 2018 to provide the Veteran with an additional VA examination. The VA examination was completed, and in July 2020 a SSOC was rendered. Development is completed, and the issue has returned to the Board for further adjudication. Applicable Law The Veteran's right ankle strain is rated under DC 5010-5271, which evaluates range of motion in the ankle. DC 5271 provides a 10 percent evaluation for moderate limitation of motion, and a 20 percent evaluation for marked limitation of motion. Ankle dorsiflexion is measured from 0 to 20 degrees; plantar flexion is measured from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Effective February 7, 2021, the DCs pertaining to the ankle were amended. The applicable rating criteria for DC 5271 regarding limited motion of the ankle did change; however, it was not a substantive change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). The Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. The revised regulations for DC 5271 define marked and moderate limitation of motion as it applies to the ankle. Under the revised regulations, marked limitation of motion of the ankle is defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Moderate limitation of motion of the ankle is defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. The evaluations remain the same, that is marked limitation of motion provides a 20 percent evaluation, and moderate limitation of motion provides a 10 percent evaluation. As the earlier iteration did not provide a defined degree of limitation of motion for either marked or moderate, the Board will adopt the new definitions for the analysis. Analysis A rating in excess of 10 percent is not warranted at any time over the entirety of the period on appeal. A review of the Veteran's record over the entire period on appeal reflects that the Veteran has never been found to have ankylosis of the right ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Additionally, the Veteran's dorsiflexion has never been limited to 5 degrees or less, nor has his plantar flexion been limited to 10 degrees or less. The Veteran underwent VA examinations pertaining to his right ankle strain in May 2014, June 2014, May 2016, and December 2019. None of the examinations showed the Veteran's dorsiflexion to be limited to 5 degrees or less or his plantar flexion to be limited to 10 degrees or less. The Veteran's range of motion for dorsiflexion was limited at its most to 20 degrees or more during the May 2014 examination, 30 degrees during the June 2014 examination, 20 degrees during the May 2016 examination, and 15 degrees during the December 2019 VA examination. The Veteran's range of motion for plantar flexion was limited at its most to 45 degrees or more during the May 2014 examination, 20 degrees during the June 2014 examination, 45 degrees during the May 2016 examination, and 20 degrees during the December 2019 examination. Except for the May 2016 examination, these findings take into account pain on motion, repetitive use, repeated use over time, and flare-ups. Thus, at its worst, the Veteran's dorsiflexion was limited to 15 degrees, and his plantar flexion was limited to 20 degrees. The December 2019 VA examiner found that the Veteran's initial dorsiflexion was limited to 15 degrees and his initial plantar flexion was limited to 20 degrees. The examiner reported that the Veteran's range of motion with repetitive use testing remained the same, and estimated that the Veteran's range of motion with repeated use over time and with flare-ups would also remain the same. Pertaining to factors other than range of motion, during all four VA examinations, the Veteran's muscle strength for both plantar flexion and dorsiflexion were normal. Muscle atrophy was not found. The Veteran did not have ankylosis. The Veteran did not have any additional conditions, to include shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or had a talectomy (astragalectomy). No joint replacements or other surgeries were noted to have been performed on the Veteran's right ankle. The Veteran did not have any scars related to his right ankle strain. During both the May 2014 and December 2019 VA examinations, the Veteran did not report the use of any assistive devices. During the June 2014 VA examination, the Veteran reported the occasional use of a cane when his right ankle was swelling and hurting, approximately three to four times per year. He also reported the occasional use of a cane during the May 2016 VA examination, however, he relayed that his utilization of a cane depended on the amount of walking and equated its use to about twice a week. He explained that his doctor had told him that he had arthritis in his knees. Laxity was not found during joint stability testing at either the May 2014 or May 2016 VA examinations. At both the June 2014 and December 2019 VA examinations, ankle instability and dislocation were not expected, and therefore joint stability testing was not completed. During both the May 2014 and December 2019 VA examinations imaging studies were noted to be available that documented arthritis. However, during the May 2016 VA examination, imaging studies were noted to be available, and they did not document arthritis, rather x-rays from May 2016 showed a normal ankle. Imaging studies were not available during the June 2014 VA examination. A review of the Veteran's VA and private treatment records reflects complaints and treatment of pain and occasional swelling in conjunction with the Veteran's right ankle; however, they do not provide any findings of any greater significance than those relayed in the above VA examinations. Based upon the foregoing, a rating in excess of 10 percent for the Veteran's right ankle strain for the entirety of the period on appeal is not warranted. The Veteran's range of motion has not been showed to be limited to 5 degrees or less for dorsiflexion or 10 degrees or less for plantar flexion. Even without utilizing the range of motion that was defined in the revised regulations for "marked" limitation of motion, a rating of 20 percent for marked limitation of motion would not be warranted. Based off of the Veteran's range of motion at the December 2019 VA examination, that is his 15 degrees for dorsiflexion and 20 degrees for plantar flexion, the Veteran has retained 75 percent of his range of motion for dorsiflexion and 44 percent of his range of motion for plantar flexion. This equates to about 50 percent for total ankle range of motion. The Veteran's muscle strength has not been decreased, he does not have ankylosis, and he does not have any additional conditions. The Veteran has not been shown to have instability, and he has only reported utilizing a cane occasionally. The Veteran's primary complaints pertain to pain, and occasional swelling. Thus, even without utilizing the defined ranges of motion in the revised regulations, the Veteran's range of motion is best characterized as "moderate." The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's right ankle strain. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Even when limitations from pain, lack of endurance, and repetitive motion, are factored in, the Veteran's motion was estimated to be limited at most to 15 degrees for dorsiflexion and 20 degrees for plantar flexion. As such, it has not been shown that functional limitations limited the Veteran's range of motion to an extent as to warrant a rating in excess of 10 percent at any time over the entirety of the period on appeal. Accordingly, an initial rating in excess of 10 percent for right ankle strain is denied. 3. TDIU Applicable Law 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Veteran is considered unemployable if found that his or her service-connected disabilities result in being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to 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. Factors that may be relevant include, but are not limited to, the Veteran's limitations of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration is 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 concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. Analysis The Veteran asserts that he is unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. On July 14, 2015, the Veteran filed a formal claim for a TDIU. In his application he reported that he had last worked as a sales manager for UPS, and that he had quit in December 2009. He noted that he had completed four years of college, and that he also completed a master's degree in divinity religion. The Veteran's educational record shows that he attended college in pursuit of an undergraduate degree; however, it is unclear whether the Veteran obtained an undergraduate degree. The master's degree in divinity religion is not referenced in his educational record. The Board notes that the Veteran's record does not contain any allegations of individual unemployability made prior to the filing of the Veteran's July 14, 2015 claim. As of July 12, 2016, the Veteran is rated at 100 percent. The Board notes entitlement to a TDIU from July 12, 2016 onward is not moot because he has not been awarded special monthly compensation under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As of July 14, 2015, the Veteran has been service-connected for chronic renal insufficiency with hypertension with a 60 percent evaluation, gastroesophageal reflux disease with a 30 percent evaluation, cervical strain with a 20 percent evaluation, chronic sinusitis with a 10 percent evaluation, and right ankle strain with a 10 percent evaluation. This equates to a combined evaluation of 90 percent. As such, the Veteran meets the schedular rating criteria for the entire period on appeal. In April 2016, the Veteran submitted a private vocational assessment, in which the vocational counselor found that it was at least as likely as not that the Veteran does not have the ability to obtain and/or sustain regular, gainful employment based on the disabling factors associated with his service-connected conditions. The counselor reported a thorough review of the Veteran's file, in addition to a telephone interview with the Veteran. The Counselor's conclusion was based off of the Veteran's physical limitations from his service-connected disabilities in conjunction with a lack of transferable skills. As to the Veteran's physical limitations, the vocational counselor began by noting that the Veteran's functional capacity did not meet the physical requirements for the jobs in his work history. The counselor noted a VA neck examination from June 2014, prior to the appeal period, which provided the following assessment: maximum lifting capacity of 25 pounds for 30 minutes; walking at one time limited to the car and mailbox; walking in an eight hour day limited to 100 yards; maximum sitting for two hours and standing for only 15 minutes at a time; and during an eight hour day sit for only a couple of hours at a time and stand for only 15 minutes at a time. The counselor noted these findings to be an accurate assessment of the Veteran's physical capabilities, and further stated that with these restrictions, the Veteran would be at least as likely as not unable to sustain full-time sedentary work. The counselor explained that many sedentary level jobs require either frequent (from one-third to two-thirds of a full work day) or constant (more than two-thirds of a full day) sitting, and therefore, the Veteran's limitations on sitting and standing have significant ramifications. As to the Veteran's Vocational and transferrable skills, the vocational counselor noted that while the Veteran had been awarded a Masters in Divinity Religion, it was an online degree pursued through a seminary and did not equate to a degree obtained from a higher education institution. As to employment, the counselor stated that the degree had minimal value. Additionally, the counselor noted that while the Veteran occasionally preached at his church, he did so without remuneration. The counselor noted that the Veteran's work history included administrative support for 20 years in the military, administrative clerk for three years, and an account sales manager/sales representative for UPS for 12 years. In analyzing the Veteran's transferrable skills, the counselor explained that the Veteran worked only at physically demanding administrative type jobs; whose physical requirements he was no longer capable of meeting. As the Veteran's vocational profile had been primarily in the shipping service, he only had limited transferrable skills. As such, the counselor found that the knowledge and skills the Veteran acquired in his past work did not readily transfer to occupations within his post-injury profile. The vocational counselor provided a thorough and well rationalized analysis of his findings, which took into account pertinent evidence, such as VA examinations, lay statements, and the Veteran's education and work history. The Board finds the vocational counselor's rationalization to be relatively consistent with the Veteran's record, and therefore the Board finds that a TDIU is warranted. However, the Board notes that the vocational counselor found that the Veteran's unemployability date was at a minimum 2013, the year in which the counselor reported the Veteran filed for his request for unemployability. This report of 2013 being when the Veteran filed his claim is inconsistent with the record. As previously noted, the Veteran first filed a claim for a TDIU on July 14, 2015, and the record does not contain any allegations of individual unemployability made prior to the filing of the July 14, 2015 claim. Accordingly, a TDIU is granted effective July 14, 2015. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.