Citation Nr: 21042136 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-03 017A DATE: July 12, 2021 ORDER Entitlement to an effective date of August 29, 2007, for the award of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Effective August 29, 2007, the evidence reasonably shows that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, effective August 29, 2007, have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, in pertinent part, originally filed a claim for increased ratings for his service-connected musculoskeletal conditions and a claim for service connection for other musculoskeletal conditions, including a back condition, in August 2007. The claim of entitlement to service connection for a back condition was ultimately granted by the Board in a May 2015 decision. An October 2015 rating decision implemented this grant and assigned an effective date of August 29, 2007. In May 2015, the Veteran filed a claim for TDIU, asserting he was unemployable due to his service-connected disabilities. An August 2015 rating decision granted entitlement to TDIU, effective May 26, 2015, and continued his disability ratings for his service-connected bilateral knee disabilities. The Veteran appealed the August 2015 and October 2015 rating decisions, asserting entitlement to an earlier effective date for the award of a TDIU. During the pendency of the claim, the Veteran passed away in December 2016. In August 2017, VA received a claim from one of the Veteran's minor children requesting substitution status, which was granted by VA in February 2018. The named appellant is legal guardian of the minor child. In January 2020, the Board, in pertinent part, issued a decision denying the claim. The appellant thereafter appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the parties filed a Joint Motion for Partial Remand (JMPR). On December 14, 2020, the Court granted the JMPR and remanded this matter for compliance with the terms of the JMPR. 1. Entitlement to a TDIU prior to May 26, 2015 In the December 2020 JMPR, the parties agreed to vacate the January 2020 Board decision, which denied the claim for an effective date earlier than May 26, 2015 for TDIU. It was noted that the Board failed to offer adequate reasons or bases for its determination that the Veteran was not entitled to an earlier effective date for TDIU. The parties noted that the Veteran raised the issue of TDIU when he appealed the October 2015 rating decision which assigned a 10 percent disability rating for his back disorder, effective August 29, 2007. The Board notes that "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 involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). "When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. Accordingly, an effective date for TDIU can potentially, based on the facts found, extend back to the date of claim of the underlying disability when raised during the pendency of an original claim. See id. at 453-54. The appellant asserts entitlement to an effective date prior to May 26, 2015 for the award of a TDIU. Specifically, the appellant, by and through their representative, has asserted that the claim of entitlement to a TDIU was raised as a part of the Veteran's increased rating and service connection claims from August 2007. See June 2021 Appellate Brief. As stated above, the Veteran's August 2007 claim concerned entitlement to service connection and entitlement to increased disability ratings. During the pendency of that appeal, the Veteran stated that he was unable to work due to his service-connected disabilities. See August 2009 VA Form 9. As the claim for TDIU arose in connection with the claims for increased rating of his musculoskeletal conditions and entitlement to service connection for his low back disorder, which was received on August 29, 2007, the period under review for the TDIU claim also stems from such date. Therefore, the earliest possible effective date available for the award of a TDIU is August 29, 2007, the effective date for the award of service connection for the Veteran's back disability (which the initial rating is on appeal). See 38 C.F.R. § 3.400. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability or as a result of two or more disabilities. 38C.F.R. §§ 3.340, 3.341, 4.16(a). 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. 38C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Effective August 29, 2007, the Veteran was service connected for degenerative disc disease of the thoracolumbar spine, rated as 10 percent disabling; limitation of flexion, right knee, rated as 10 percent disabling; degenerative arthritis of the left knee, rated as 10 percent disabling; and osteochondritis dissecans of the right and left knee, each rated as 30 percent disabling. His combined disability rating from that date was 70 percent. Thus, from August 29, 2007, his disability ratings meet the minimum requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis. Having established that the Veteran's disabilities met the schedular criteria for a TDIU from August 29, 2007, the remaining question is when the entitlement to TDIU arose. The Veteran reported that he last worked in 1999 as an oil field worker. He further reported completing one year of college and training in offshore oil field training. He stated that his service-connected disabilities caused constant and chronic pain which impacting his daily functioning. See May 2015 VA Form 21-8940. A June 2013 VA examination report noted that the Veteran's bilateral knee disorders caused him to experience difficulty walking, sitting and standing from a chair, kneeling, and squatting. See June 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). In support of the claim, the Veteran's representative submitted a March 2015 independent medical examination and opinion, which was based on a review of the record and an interview with the Veteran. The independent medical examiner opined that the Veteran was not capable of performing or sustaining gainful employment since 2001. The examiner rationalized that the Veteran's service-connected disabilities prevented him from performing any type of manual labor that involved standing or walking. Furthermore, given the Veteran's work history and education level, he did not have the necessary transferable skills to be employed in a sedentary position. See March 2015 Independent Medical Review. In November 2015, the Veteran submitted an affidavit attesting to the severity of his service-connected disabilities. He stated that he took painkillers throughout the day which offered minimal relief and caused dizziness. He also stated that his pain prevented him from sleeping. The Veteran described his need for assistive devices including braces, canes, and wheelchairs, as his legs would give out due to numbness and pain. He further described being unable to sit or stand comfortably, and his need to constantly change positions. The Veteran stated his pain has gotten progressively worse, and he struggled to complete household chores. See November 2015 Affidavit. In a May 2021 private vocational assessment, the vocational expert opined that the Veteran was unable to secure and follow and substantially gainful employment, to include unskilled sedentary employment, due to his service-connected musculoskeletal disabilities. In this regard, the expert rationalized that the Veteran was precluded from all physical requirements of any job including standing, walking, or sitting for any length of time without frequent breaks and adjustments which would not be tolerated in a regular working environment. The examiner noted that the opinion was based solely on the Veteran's service-connected disabilities. It was also noted that the record supported this finding as of August 2007. See May 2021 Vocational Assessment. The Board notes that there is an examination report of record which provides a differing opinion regarding the Veteran's ability to engage in substantially gainful employment during the appeal period and prior to his death. See July 2015 Back Conditions DBQ (opining the Veteran would require accommodations for sitting and standing and likely required light to sedentary employment). However, the Board finds, at the least, that the evidence for and against the claim is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the appellant and the Board finds that an effective date of August 29, 2007 for TDIU, is warranted. The evidence, as summarized above, indicates that, throughout the appeal period, the Veteran's service-connected disabilities negatively impacted his ability to obtain or maintain substantially gainful employment. Therefore, a TDIU from August 29, 2007 is warranted, and the claim is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.