Citation Nr: 22015661 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 07-20 667 DATE: March 18, 2022 REMANDED Entitlement to an effective date earlier than August 24, 2011, for a total disability rating based on individual unemployability (TDIU), for substitution purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to October 1967. He died in September 2019, and the appellant is his surviving spouse. The appellant has been substituted for the Veteran to pursue matters pending at the time of his death. During the Veteran's lifetime, he sought service connection, and then sought increased disability ratings, for disabilities including a disability of his back. The matter presently on appeal came to the Board of Veterans' Appeals (Board) from ratings decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011 the Veteran testified at a Travel Board hearing before the undersigned acting Veterans Law Judge (VLJ). In a July 2014 rating decision, the RO granted the Veteran a TDIU. The RO assigned an effective date of August 24, 2011, for the TDIU. The Veteran appealed to the Board for an earlier effective date. In a May 2020 decision, the Board denied an effective date earlier than August 24, 2011, for the TDIU. The appellant appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In January 2021 the appellant and VA (the parties) submitted to the Court a joint motion for partial remand (JMPR), asking the Court to vacate the portion of the May 2020 Board decision that denied an earlier effective date for the TDIU and to remand that matter to the Board for further review. In a January 2021 order, the Court granted the JMPR. In February 2021, the Board send the Veteran a letter notifying him he had 90 days to submit any additional evidence or argument. See BVA Letter (February 2021). That time has expired. 1. Entitlement to an effective date earlier than August 24, 2011, for a TDIU, is remanded. The Board is remanding this matter for the RO to refer to the Director of the VA Compensation Service for consideration as to whether a TDIU for the Veteran was warranted on an extraschedular basis from a date earlier than August 24, 2011, and, specifically, from February 20, 2002. The Veteran sought, and the appellant as his substitute continues to seek, an effective date earlier than August 24, 2011, for the TDIU that was awarded for the Veteran. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38U.S.C. §5110(a); 38C.F.R. §3.400. The effective date of an award of an increased disability rating, including a TDIU, is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date, and otherwise the date of receipt of the claim. 38C.F.R. §3.400(o)(2). VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Entitlement to a TDIU depends on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). A TDIU may be assigned, on an extraschedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). If a veteran fails to meet the disability percentage standards, then the Board cannot grant a TDIU in the first instance. If warranted, the Board may instead refer the claim to the Director of the VA Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Veteran's TDIU claim was raised by the record of his claim for an increased rating for his disabilities, including a disability of his back. In a May 2011 decision, the Board found that the record regarding the Veteran's claim for an increased rating for his back disability reasonably raised a claim for a TDIU. In May 2011 the Board added a claim for a TDIU to the issues that were pending for the Veteran. In the January 2021 JMPR, the parties found that the Veteran's claim for an increased rating for his back disability dates back to February 2002. The parties requested, and the Court ordered, that the effective date for the Veteran's TDIU be considered in light of evidence regarding the effects, from as early as February 20, 2002, of the Veteran's service-connected back disability on his employability. The Veteran submitted in support of his claims a February 2002 letter from his treating physician, A. M., M.D. In that letter, Dr. M. wrote that the Veteran was permanently disabled. The Veteran also submitted records of medical treatment, including by Dr. M., for his back disability and other issues. In April 2002 the Veteran submitted a request to reopen a previously denied claim for service connection for a back disorder. The Board also notes that in January 2003 VA received a July 1989 decision by the United States Social Security Administration (SSA) regarding Social Security benefits for the Veteran. In 1989 SSA found that the Veteran had been disabled since November 1988 due to a back disability with back and leg pain. The adjudicator found that the Veteran's impairments prevented him from performing work with physical demands or work that required sitting for more than 30 minutes at a time. From February 20, 2002, then, there was evidence that the Veteran's service-connected back disability may have made him unemployable. His compensation history shows that from that date his back disability was rated at 40 percent. Service-connected sciatica affecting his left lower extremity (LLE), associated with his back disability, was rated at 40 percent. Cholecystectomy was rated at 0 percent. The combined rating was 60 percent. These levels did not meet the rating threshold set forth in § 4.16(a). Therefore, the question of whether a TDIU was warranted during the period under consideration for the effective date issue must be addressed on an extraschedular basis. As the Board may not determine entitlement to an extraschedular TDIU in the first instance, the Board is remanding the matter to the RO, for the RO to refer the question to the Director of the Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Refer to the Director of the VA Compensation Service the issue of entitlement of the Veteran to a TDIU on an extraschedular basis from as early as February 20, 2002, or from any date earlier than August 24, 2011. In accordance with 38 C.F.R. § 4.16(b), the RO must include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors bearing on the issue. The Director of the Compensation Service should issue a memorandum explaining the reasons for this decision and a summary of the evidence considered. 2. Then readjudicate the remanded effective date claim, based on the entirety of the evidence. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kunz, Kirsten 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.