Citation Nr: 22014342 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 13-10 385 DATE: March 12, 2022 ORDER Entitlement to an effective date of May 31, 2009, for a total disability rating for individual unemployability due to service-connected disorders (TDIU) is granted. FINDING OF FACT Between May 31, 2009, and July 28, 2016, the evidence is at least evenly balanced as to whether service-connected disabilities prevented the Veteran from securing and following a substantially gainful occupation. CONCLUSION OF LAW Between May 31, 2009, and July 28, 2016, the criteria for a total disability rating for individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1985. This case initially came to the Board from a December 2009 decision issued by the Agency of Original Jurisdiction (AOJ), which denied the Veteran's request for an increased rating for service-connected arthritis of the right knee, proposed reductions in the ratings previously assigned for his service-connected disabilities of both knees, and denied TDIU. In December 2016, the AOJ granted TDIU, effective July 28, 2016, and the Veteran later filed a notice of disagreement (NOD) seeking an earlier effective date. Because this favorable TDIU decision applied only to part of the relevant appeal period, filing this NOD was not strictly necessary. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). But it makes clear that the Veteran was not satisfied with the effective date assigned. During the lengthy proceedings in this case, TDIU has been considered together with other claims for benefits, including the propriety of rating reductions for service-connected knee disabilities and requests for increased ratings for service-connected disabilities of both knees and both ankles. In September 2018, the Board vacated the rating reduction for the left knee while denying the Veteran's appeal of a separate reduction following a temporary total rating for a period of post-surgical convalescence pursuant to 38 C.F.R. § 4.30. In April 2020, the Board denied the increased rating claims for both ankles while remanding TDIU and the remaining left knee increased rating claim. In January 2021, the Board resolved the left knee increased rating claim. Since then, the only issue remaining in this appeal is the claim for a TDIU rating prior to July 28, 2016. The Board remanded the TDIU claim in December 2015 to request records from the Social Security Administration (SSA), in September 2018 and April 2020 because the issue was intertwined with other remanded increased rating claims, in January 2021 to obtain medical opinions and for referral to the Director of the Compensation Service to consider eligibility for a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), and, most recently, in May 2021 to obtain another medical opinion. Applicable Law VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. Except for three periods in which he was granted temporary 100 percent ratings for periods of post-surgical convalescence (March 18 to May 1, 1997, July 26 to October 1, 2010, and June 17 to August 1, 2014), the Veteran did not meet the schedular criteria of 38 C.F.R. § 4.16(a) before July 28, 2016, which is the effective date for service-connected compensation for disabilities of the lumbar spine and both hips. 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). Accordingly, the Board cannot grant a TDIU rating for the period before July 28, 2016, based on the effects of the back and hip disabilities. For the period from February 19, 2010, to July 28, 2016, the Board may consider the effects of the disabilities of the ankles and knees. For the period before February 19, 2010, the Board may only consider the knee disabilities. Subsection (b) of 38 C.F.R. § 4.16 provides that it is VA's policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. When the claimant does not meet the schedular criteria of subsection (a), the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board may review the Director's refusal to assign an extraschedular rating. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015). In March 2021, the Director denied an extraschedular TDIU rating for the period before July 28, 2016. Thus, if the Veteran's knee and/or ankle disabilities prevented him from working before July 28, 2016, a TDIU rating pursuant to subsection (b) is appropriate. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). When deciding a TDIU claim, the Board must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court clarified the consequences of referrals for extraschedular TDIU. The Court explained that a decision to refer a claim to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding that evidence exists sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Such a referral does not necessarily require the Board to award an extraschedular rating. Id. at 65. But the Board must adequately explain when a factual finding made at the referral stage comes out differently at the review stage. Id. at 66. Factual Background The Veteran prepared three application forms in support of his TDIU request. The first form, received in October 2007, indicates that he was then working 30 hours each week as a dishwasher in a restaurant and that he felt his knee disabilities prevented him from working. On the form, the Veteran identified October 2, 2007, as the first day he became too disabled to work. According to the second form, he became too disabled to work on May 8, 2009. The form identified the same restaurant mentioned in the 2007 form as his most recent employer and indicated that he was paid $12,000 in 2008 for maintenance work. The third form, dated February 2015, indicates that the Veteran stopped working at that restaurant in October 2006. It identified the service-connected bilateral ankle disabilities, as well as the knee disabilities, as the reason he was unable to work. According to records from the Social Security Administration (SSA), that agency obtained information about the Veteran's employment history when processing his claim for SSA disability benefits. In May 2011, the SSA granted his claim, finding the Veteran disabled because of "the following severe impairments: degenerative joint disease of the left knee, osteoarthritis, and obesity." The Administrative Law Judge (ALJ) issuing the decision determined that the Veteran stopped working last "engaged in substantial gainful activity" on May 31, 2009. The SSA decision explained that, due to knee arthritis, the Veteran suffered from severe pain and an inability to stand for long periods. He apparently told the ALJ that his physician advised him to avoid standing for more than one half hour. The decision includes a summary of contemporary medical records documenting knee and ankle pain. According to the ALJ, the Veteran's past relevant work was unskilled and that, in the national economy, jobs which he could perform did not exist in significant numbers. Before he applied for SSA benefits, the Veteran seems to have considered vocational rehabilitation on at least two occasions. Some of the earliest post-service VA medical records, dated January 1988, indicate that the Veteran was working "in a turkey plant and prolonged standing is aggravating to his service-connected condition [of the left knee]." A consultation report of approximately the same date reflects that his work "is aggravating his [service-connected] condition and therefore has been referred for vocational rehabilitation training." According to his vocational and rehabilitation file, the Veteran did not meet with a VA rehabilitation counselor until April 2003. The interview notes describe the Veteran's most recent job as operating a machine at a seafood factory. He worked in this capacity between 1996 and 2001, leaving only when he "broke his left shoulder on the job." The counselor wrote that the Veteran had "substantial" vocational limitations as a result of his service-connected knee disabilities. But the counselor denied the claim after concluding that a vocational goal was not feasible. To explain this decision, the counselor cited the Veteran's lack of a high school diploma and the suspension of his driver's license due to unpaid fines. But the Veteran found work shortly after the denial of his request for vocational rehabilitation benefits. In support of his May 2009 TDIU application, the Veteran submitted a letter from his employer, dated May 8, 2009. The letter explained that he had been working since July 2003 as a dishwasher and maintenance man. The employer wrote that, "his performance has deteriorated the last 2 years because of his physical condition. It is getting more difficult to perform his duties that are physical in nature. We have cut his hours down. However, we will more than likely have to let him go sometime in the near future because of his inability to work." The record includes many reports of VA examinations, arranged to help decide the appropriate ratings for the Veteran's service-connected disabilities of the knees and ankles. For the purposes of this decision, the most significant of these reports is based on a June 2010 examination because, of all the reports, this report describes his relevant symptoms at a time closest to the end of his last period of paid employment. The report describes pain and weakness in both knees and both ankles. According to the examiner, these disabilities affected the Veteran's ability to walk normally, resulting in an antalgic gait and, "poor propulsion. . ." According to the examiner, the approximate initial dates of onset for the ankle disabilities were October 2009 for the left ankle and February 2010 for the right ankle. Consistent with the information provided by SSA and by the Veteran's former employer, the examiner indicated that the Veteran most recently worked in 2009 and that the reason for his unemployment was the injury to his left knee. In October 2015, a vocational consultant working with the Veteran's attorney interviewed the Veteran, reviewed his medical records, and prepared a written report on the effect of service-connected disabilities on his employment. According to this report, the Veteran stopped attending high school in the ninth grade. He later tried to pass the general educational development test (GED), but was unsuccessful. His work experience included employment as a plumber's helper, which required carrying plumbing equipment, standing, walking, bending, and kneeling. Later he performed maintenance at a popcorn factory and as a machine operator at a plastic company. Both positions required prolonged standing. After his discharge from the Army, he worked in trash removal on a military base and as a dishwasher for the restaurant operated by the author of the May 2009 letter. This work involved constant standing, walking, reaching, handling and bending. The Veteran said that, because of his disabilities of the lower extremities, his boss eventually told him he could no longer work there. According to the consultant's report, the Veteran lacked training or experience using computers or ordinary office equipment. His knee pain, "causes him to lose focus and concentration and increases his level of irritability. . . He continued to work until he was no longer capable of working as a dishwasher at [the restaurant]." The consultant wrote, "he does not have the transfer skills which would allow him to work in competitive employment which accommodates his need to sit and stand as needed and elevate his legs." In the consultant's opinion, the Veteran "became unable to work as of February 2010. My opinion does not take into account age or non-service connected disabilities." In September 2021, the same vocational consultant prepared a supplemental report responding to criticism of his first report in a December 2018 Supplemental Statement of the Case (SSOC), which suggested that the consultant's opinion was inconsistent with a 2015 VA examination report indicating that the examiner found no chronic ankle disability. The September 2021 report quoted medical records indicating pain and swelling of the ankles both before and after 2015. The consultant described the Veteran's most recent work as a dishwasher and kitchen helper as "medium duty work." In the consultant's opinion, "because of his ongoing problems with his knees and ankles he was dismissed from work. He had no other skills allowing for transfer to new occupations." Pursuant to the Board's remand orders, the AOJ also obtained medical opinions from VA examiners on the effect of service-connected disabilities on the Veteran's ability to work. According to a November 2018 ankles examination report, the Veteran was unable to perform sedentary work. In July 2020, a physician in private practice prepared an examination questionnaire, which indicates that, "since 2009, the pain [in both knees] has been constant and significant to [the point] where he is unable to stand, walk or sit for more than an hour." The physician wrote that, after reviewing the medical records, he found that the Veteran's "statements concerning the intensity, persistence and limiting effects of these symptoms are generally credible." In February 2021, a VA nurse practitioner prepared a report indicating that service-connected disabilities were consistent with sedentary work. The examiner attributed many of the Veteran's physical limitations to obesity rather than service-connected disabilities. A few weeks later, the same examiner prepared a second report indicating that the Veteran was capable of medium work, but the report does not explain the change in her opinion. The AOJ requested a clarification, and a VA physician assistant prepared another report in March 2021. In the examiner's opinion, prior to July 2016 the Veteran's knee and ankle disabilities were compatible with light work. Addressing the combined effect of the Veteran's service-connected disabilities before July 2016, the examiner likewise indicated that his functional limitations were consistent with light work. Since the most recent remand, the AOJ obtained two opinions. In June 2021, a nurse practitioner indicated that the Veteran was using a powered wheelchair and was unable to ambulate, drive, squat, tie his shoes, or stand for more than one or two minutes. "This would make him unable to do sedentary work which may involve walking or standing for brief periods due to all service connected knee conditions. . ." the examiner explained. The examiner suggested that he would be able to perform, "administrative tasks sitting in a bariatric wheelchair or power wheelchair." In October 2021, an orthopedic surgeon wrote that, in her opinion, the Veteran's service-connected disabilities before July 2016 were compatible with light work. She explained that the difficulty walking and standing, which caused him to stop working in 2009, was "unrelated to his joint disease but due to his morbid obesity and overall declining health." Analysis After reviewing the record, the Board finds that the Veteran is eligible for an earlier effective date for TDIU. The evidence from the Veteran, from his most recent employer, and from the SSA clearly demonstrates that he stopped working as a dishwasher in May 2009 because pain in his lower extremities made it difficult for him to walk or stand. There may be some merit to the February 2021 and October 2021 opinions indicating that obesity contributed to these conditions. So the Board has considered the possibility that these reports particularly the more detailed and well-reasoned orthopedic surgeon's opinion might require the denial of the Veteran's request for an earlier effective date for TDIU. But there are at least two problems with relying on the Veteran's obesity to deny an earlier effective date for TDIU. Through his attorney, the Veteran has argued that he only developed obesity because service-connected disabilities prevented him from performing regular exercise. Cf. VAOPGCPREC 1-2017. It is also significant that, even in the orthopedic surgeon's opinion, the Veteran's service-connected disabilities, in the absence of obesity, would likely be compatible with light work only. The September 2021 consultant's report described the Veteran's most recent dishwasher position as medium work. The consultant and the ALJ who granted Social Security benefits in May 2011 both agreed that, due to his limited education and experience, it was unlikely that jobs consistent with the Veteran's residual functional capacity were available in significant numbers. It seems that all of the Veteran's previous work was in jobs involving extensive physical exertion. For these reasons, the evidence is at least evenly balanced as to whether service-connected disabilities prevented the Veteran from securing and following a substantially gainful occupation before July 28, 2016. There is some conflict in the evidence as to precisely when the Veteran became unable to work. As noted, the February 2015 TDIU application indicates that the Veteran stopped working as a dishwasher in October 2006. But this statement conflicts with the Veteran's other TDIU applications, with the information obtained by the SSA, and with the May 2009 letter from his most recent employer. The vocational consultant and the Veteran's attorney have suggested that February 19, 2010 (the effective date for service-connected compensation for the ankle disabilities) is the most appropriate effective date for a TDIU rating. If the Veteran's knee disabilities, in the absence of his ankle disabilities, would have been compatible with substantially gainful employment, then this result would be required by the Court's decision in Delrio v. Wilkie, 32 Vet. App. 232 (2019). But the June 2010 VA examiner indicated that the initial date of onset for both ankle disabilities occurred after the Veteran stopped working as a dishwasher in May 2009. According to the examiner, the left ankle symptoms began in October 2009 and the right ankle disability had its onset in February 2010. It is clear from the May 2009 employer's letter and the Veteran's other statements that pain, weakness, and fatigue in the lower extremities associated with the knee disabilities prevented him from working before either date. The May 2009 TDIU application identified May 8, 2009, as the last date the Veteran was able to work full-time. But the employer's letter, which is also dated May 8, 2009, describes the end of the Veteran's work at the restaurant as an event expected in the future, and not as something that occurred in the past ("we will more than likely have to let him go sometime in the near future because of his inability to work"). Of the several dates identified as the end of the Veteran's full-time work, May 31, 2009, the date identified in the 2011 SSA decision, is the date most consistent with the other available evidence. Some of the documents in the claims file identify February 19, 2010, as the date of receipt of claim for the increased rating claims, including TDIU, which eventually reached the Board in this appeal. But the document likely also satisfies the applicable criteria for a notice of disagreement appealing the earlier December 2009 decision denying TDIU. See 38 C.F.R. § 20.201 (2009). Even if February 2010 is correctly understood as the date of the receipt of the relevant claim, subsection (b)(3) of 38 U.S.C. § 5110 authorizes an effective date before the date of receipt of the claim if it is ascertainable that the severity of the relevant disability worsened to the extent that it prevented him from working during the year before the AOJ received his claim. Because the Veteran's knee disabilities first prevented him from working full-time in May 2009, less than one year before the AOJ received the February 2010 claim, subsection (b)(3) potentially applies to this case. For these reasons, whichever document is considered to be the relevant claim, May 31, 2009, is the most appropriate effective date for the Veteran's TDIU rating. Thus, the Board will grant an extraschedular TDIU rating pursuant to 38 C.F.R. § 4.16(b), effective May 31, 2009. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.