Citation Nr: 22014388 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 20-17 205 DATE: March 12, 2022 ORDER An earlier effective date of February 17, 2009, for the grant of a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to TDIU prior to February 17, 2009, is remanded. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from February 17, 2009, onward. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date prior of February 17, 2009, onward, for the grant of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to October 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which implemented the November 2018 Board decision that granted entitlement to a TDIU and assigned an effective November 23, 2011. The Veteran filed a motion to advance the case on the docket due to financial hardship. See 3/7/2022 Correspondence. The undersigned Acting Veterans Law Judge hereby grants the Veteran's motion to advance the case on the docket. An earlier effective date for a TDIU. A TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Once the schedular criteria outlined above have been met, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. The fact that a Veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual Veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the Veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. As a general rule, the effective date of an award of VA disability compensation, including TDIU, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award of an increased rating (including a TDIU) will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). For increases, the effective date will be the receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Therefore, the Board must review the record to ascertain whether or not it is factually ascertainable that the Veteran became eligible for a TDIU within one year prior to the receipt of the claim for TDIU. Similarly, when entitlement to TDIU is raised in the context of a claim for an increased evaluation for a service-connected disability, the effective date of TDIU "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(3); see Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe."); 38 C.F.R. § 3.400(o)(2); see generally Rice, 22 Vet. App. at 454 (explaining that the vehicle through which TDIU is raised "is important for purposes of assigning an effective date for an award of compensation" because "[d]ifferent statutory and regulatory provisions apply depending on whether the claim is an original claim or one for increased compensation"). Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates after March 24, 2015, so the regulations in place after that date are applicable and are referred to in this section. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The record showed that the Veteran was found to be entitled to a TDIU, with an effective date of November 23, 2011, per the January 2019 rating decision on appeal, which implemented the November 2018 Board decision that granted entitlement to a TDIU. In this matter, the Veteran asserts that he is entitled to an earlier effective date for a TDIU. See 10/22/2019 VA 20-0995. The record showed that the Veteran raised the issue of a TDIU in May 2008; since that date the Veteran has consistently reported that the symptoms caused by his service-connected disabilities prevented him from maintaining steady employment. See 5/15/2008 Correspondence; see also 7/8/2008 VA Examination, at page 2; 3/4/2009 Medical Treatment Record Non-Government Facility, at page 2; 1/14/2010 Correspondence; 2/12/2010 Correspondence; 4/7/2010 Medical Treatment Record Government Facility; 9/6/2010 VA 21-4138. Additionally, in a November 2012 statement, the Veteran's wife reported that the Veteran experiences symptoms from his service-connected disabilities, such as fatigue and intense pain that impairs his ability to maintain his balance and results in problems comprehending small things. Further, she stated that the medication that the Veteran takes to treat his service-connected disabilities result in an upset stomach, dizziness, sleepiness, and weakness. See 11/30/2012 Email Correspondence. The Veteran filed a formal claim for entitlement to a TDIU in September 2018. The Veteran reported that he worked fulltime at R&B Lawn Services from February 2008 to May 2010. Additionally, he worked fulltime at JJ Trucking from June 2010 to November 22, 2011. Further, the Veteran reported that he worked parttime from January 11, 2012, to December 1, 2012. Moreover, the Veteran reported that he has four years of college education. In addition, he reported that he is unable to secure and maintain substantially gainful employment due to his service-connected disabilities of fibromyalgia and plantar fasciitis. See 9/5/2018 VA 21-8940. Although the Veteran was employed from February 2008 until November 2011, the Board finds, that when resolving reasonable doubt in favor of the Veteran, his employment was marginal. In this regard, the Veteran has submitted statements from his spouse as well as from his employers. During this period, the Veteran had symptoms from his service-connected disabilities. The two employer statements show the Veteran was an unreliable employee and that he frequently missed work. The Veteran submitted a statement from P.S., the owner of R&B Lawn Services, which stated that he met the Veteran in 2008, he offered him a job, but that the Veteran could not perform the work as needed. He also reported that the Veteran worked fulltime and parttime for a couple of years. Additionally, the Veteran submitted a statement from J.J., the owner of JJ Trucking, which stated that the Veteran stopped working for him because the Veteran told him he could not do the job because of pain from sitting, driving, and getting in and out of the trucks. See 4/9/2020 Third Party Correspondence. He missed 47 days, 28 days, and 60 days of work for his three most recent occupations. Additionally, the Veteran has a college education, but there is no indication that these occupations were suitable for him. The Veteran reported that he worked fulltime for R&B Lawn Services, where he earned $1,500 per month, and worked from February 2008 to May 2010. Additionally, the Veteran reported that his last fulltime job was at JJ Trucking, where he earned $2,000 per month, and worked from June 2010 to November 22, 2011. The available evidence of record tends to show that while his earnings from February 2008 to November 22, 2011, were above the poverty thresholds, they were close to the threshold limits ($15,139 for fiscal year 2011 for those under 65). See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, the Board finds that the Veteran's employment in three different jobs in less than four years, amounts to marginal employment on a facts-found basis. The record shows that the Veteran meets the percentage threshold for consideration of a TDIU per 38 C.F.R. § 4.16(a)(2) since February 17, 2009. In detail, service connection is in effect for fibromyalgia (40 percent from February 17, 2009), allergic rhinitis (30 percent from February 17, 2009), irritable bowel syndrome (30 percent from March 5, 2014), left foot plantar fasciitis (10 percent from February 17, 2005), right foot plantar fasciitis (10 percent from February 17, 2005), left knee disability (10 percent from April 4, 2006), left testalgia (10 percent from February 17, 2009), painful scar (10 percent from April 1, 2009), bilateral plantar fasciitis (noncompensable from October 19, 1996 to February 17, 2005), left inguinal hernia (noncompensable from October 19, 1996), and surgical scar (noncompensable from April 1, 2009). As such, the Board finds that the Veteran meets the schedular criteria of 38 C.F.R. § 4.16(a) since February 17, 2009, based on two or more disabilities where at least one disability is ratable at 40 percent or more with a combined rating of 70 percent or more. As noted above, the record showed that the Veteran did not receive a combined disability rating of 70 percent and two or more disabilities where at least one disability is ratable at 40 percent or more, until February 17, 2009. Prior to February 17, 2009, the Veteran only had combined ratings ranging from 40 to 60 percent, and never had a service-connected disability of at least 60 percent or more. Thus, a TDIU cannot be awarded prior to February 17, 2009, under 38 C.F.R. § 4.16(a). The basis for the Board decision's award of entitlement to a TDIU was that it found that the symptoms caused by the Veteran's service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment since February 17, 2009. The Veteran also makes this argument. See 10/22/2019 VA 20-0995. In this regard, in January 2020 the Veteran stated that he made an error in his application for a TDIU concerning his work at JJ Trucking and R&B Lawn Services. See 1/2/2020 NOD. However, the Veteran did not specify what was the error that the Veteran had previously stated he made. As mentioned above, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Here, the record showed that it was factually ascertainable that the Veteran was unemployable since February 17, 2009, as the evidence of record showed that the Veteran had marginal employment. As such, the Board finds such evidence tends to show that the Veteran's service-connected disabilities caused the Veteran to be unable to secure or follow a substantially gainful occupation from February 17, 2009. In sum, after review of the competent and probative evidence of record, the Board finds that entitlement to a TDIU is warranted as of February 17, 2009. An award of TDIU prior to this date is addressed in the Remand section below. REASONS FOR REMAND Entitlement to TDIU prior to February 17, 2009, is remanded. The evidence above shows the Veteran's employment prior to February 17, 2009, was marginal. This decision grants TDIU effective February 17, 2009, onward. However, TDIU is not in effect for the whole period and thus remains on appeal. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to that date, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). While the Veteran does have a service-connected disability over 40 percent, his other service-connected disabilities do not combine to 70 percent. 38 C.F.R. § 4.25. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). There is competent evidence suggesting that he had marginal employment due to his service-connected disabilities prior to February 17, 2009. As such, the Board will remand this this matter for referral to the Director, Compensation Service. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This is to include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of the TDIU matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities, especially focusing on the period prior to February 2009. 3. Refer the Veteran's request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to February 17, 2009. Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.