Citation Nr: 22012175 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-24 984 DATE: March 2, 2022 ORDER Entitlement to an earlier effective date of July 30, 2015, for the grant of a total disability evaluation based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT The Veteran met the schedular criteria for a finding of TDIU on July 30, 2015 and was unable to secure and follow substantially gainful employment as of that date. CONCLUSION OF LAW The criteria for an effective date of July 30, 2015, for the award of TDIU are met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from August 1965 to August 1969 including service in the Republic of Vietnam. This matter has a lengthy procedural history, the details of which have been previously outlined in the November 2021 Board Remand. Addressing the most relevant procedural history, the issue of entitlement to an earlier effective date for the grant of TDIU was remanded in August 2021 to the Board by the Court of Appeals for Veterans Claims (CAVC) for actions consistent with a Joint Motion for Remand (JMR). In November 2021, the Board remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development. The matter has returned to the Board for further appellate review. The issue of service connection for erectile dysfunction was recently remanded in July 2021 for further development. The appeal has returned to the Board for further appellate review. The service connection claim for erectile dysfunction was certified to the Board as a separately docketed appeal but have since been merged with the appeal of the issue for an earlier effective date for the grant of TDIU remanded by the Court for purposes of economy and efficiency. A review of the claims file show that the Veteran appealed a February 2021 Board decision to the Court for the issues of service connection for hypertensive heart disease; initial ratings in excess of 20 percent each prior to August 29, 2016, for diabetic polyneuropathy of the sciatic nerve, right and left lower extremities (bilateral lower extremities ("BLE")); and a certificate of eligibility for specially adapted housing ("SAH"). In a February 2022 Joint Motion for Partial Remand (JMPR) the Court vacated and remanded the Board's February 2021 denial of the issues for actions consistent with the JMPR. On February 23, 2022, the Veteran was issued a letter notifying him that he had 90 days from the date of this letter to submit any additional argument or evidence or he could choose to waive the 90-day period if he wanted the Board to proceed to immediate adjudication of his appeal. As the 90 days have not passed and the Veteran has not waived the 90-day period, those issues will be addressed by the Board separately in a future determination. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to an earlier effective date of July 30, 2015, for the grant of a total disability evaluation based on individual unemployability (TDIU) The Veteran contends that the grant of his TDIU should have an effective date earlier than August 29, 2016. As a general rule the effective date for an award of increased benefits is the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400(o). In a November 2016 rating decision, entitlement to a TDIU was granted beginning August 29, 2016, the date of the Veteran filed his TDIU claim. However, the Veteran contends that he is entitled to an earlier effective date. A 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 ratable at 60 percent or more, or 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. 38 C.F.R. § 4.16(a). It is the established policy of VA that all Veterans who are unable to secure or follow a substantially gainful occupation by reason of service connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. "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). TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings above the poverty threshold. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran's "education, employment history and vocational attainment." See 38 C.F.R. § 4.16(b). The Board finds entitlement to an earlier effective date of July 30, 2015, for the grant of TDIU is warranted. The record contains statements from the Veteran that he had to stop working due to his service-connected PTSD and polyneuropathy disabilities. On July 30, 2015, the Veteran filed a claim for PTSD, among other issues. In the course of that appeal, he indicated that his PTSD impacted his ability to work. Hence, a claim for TDIU has been pending as part of the claim for PTSD since July 30, 2015. Beginning July 30, 2015, the Veteran is service connected for PTSD rated at 50 percent, bilateral lower extremity polyneuropathy rated at 20 percent each, diabetes mellitus rated at 20 percent, tinnitus rated at 10 percent and hearing loss rated as non-compensable. The Veteran had a combined disability rating of 80 percent with bilateral factor of 3.6 percent for diagnostic code 8520. This means that as of July 30, 2015, the Veteran met the schedular eligibility requirements for TDIU. As of that date, factual entitlement is shown because the Veteran's extreme social isolation, irritability, chronic sleep impairment and significant bilateral lower extremity polyneuropathies rendered him unable to function in a work environment as outlined by his VA examiners. Although the Veteran has a college education, he had worked primarily as a hairdresser and had developed no other transferable skills. Therefore, the Board finds that the combination of the Veteran's physical and mental service-connected disabilities made him unable to secure or follow a substantially gainful occupation as of July 30, 2015. The Board has determined that prior to filing of his TDIU claim on August 29, 2016, the Veteran was unemployable due to his combined service-connected disabilities. Accordingly, entitlement to an earlier effective date of July 30, 2015, for a finding of total disability based on individual unemployability (TDIU) is warranted, as this represents both the date entitlement arose and the date of receipt of the inferred claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU 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 as part of a claim for increased compensation)). REASONS FOR REMAND Entitlement to service connection for erectile dysfunction is remanded. The Board has previously remanded the Veteran's claim for service connection for erectile dysfunction due to herbicide agents exposure to include as secondary to service connected diabetes mellitus, for adequate medical opinions. In April 2021, a VA examiner proffered negative nexus opinions as to the service connection claim. In January 2022, the Veteran through his representative raised the issue of service connection for erectile dysfunction as secondary to the service-connected PTSD. See January 2022 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). Since the Board must consider all theories of entitlement to service connection, and in light of the Veteran's recent assertions, the Board concludes that a remand is necessary. Upon remand, the AOJ should obtain a medical opinion that considers whether any current erectile dysfunction is secondary to the Veteran's service-connected PTSD to include any medications prescribed to treat his PTSD. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2018). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Obtain a medical opinion from a qualified clinician, to determine the nature and etiology of the Veteran's erectile dysfunction. Based upon a review of the entirety of the claims file including a copy of this Remand, the examiner is requested to address the following inquiries: (a) Is it at least as likely as not (i.e., a 50 percent probability or greater) that any currently endured erectile dysfunction had its clinical onset during military service, or is otherwise related to the Veteran's active duty service? (b) Is it at least as likely as not (i.e., a 50 percent probability or greater) that any erectile dysfunction was either (i) caused by or (ii) aggravated by the Veteran's service-connected PTSD to include any medications prescribed to treat his PTSD.? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. Explanations for all opinions must be provided. 3. After completing any other development that may be warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought is not granted, the Veteran and his representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.