Citation Nr: 23038696 Decision Date: 07/12/23 Archive Date: 07/12/23 DOCKET NO. 09-26 975 DATE: July 12, 2023 ORDER Entitlement to an earlier effective date of March 27, 2007 for the award of TDIU is granted. REMANDED Entitlement to an effective date earlier than March 27, 2007 for the award of TDIU is remanded. FINDINGS OF FACT 1. On January 11, 2007, VA received informal communication from the Veteran seeking an increased rating for a lumbar spine disability. 2. The Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment at least from March 27, 2007 CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of March 27, 2007 for the award of TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from October 1969 to October 1971. In April 2023, the Board of Veterans' Appeals (Board) remanded the matter on appeal for additional evidentiary development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Earlier Effective Dates-Applicable Laws and Regulations Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. In this context, the law provides that the effective date of the award "shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Entitlement to an earlier effective date of March 27, 2007 for the award of TDIU is granted. As an initial matter, the Board finds that the Veteran's TDIU claim is a component of his January 2007 increased rating claim for a lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the date of receipt of the claim is January 11, 2007. Regarding the date entitlement arose, the Board notes that 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. §§ 3.340, 3.341, 4.16 (a). For the period from one year prior to the claim date (January 11, 2006) to March 27, 2007, the Veteran did not meet the schedular requirements for a TDIU. He was service-connected for IVDS with spinal stenosis and herniated discs, status-post surgical intervention, rated as 40 percent disabling, and left lower extremity radiculopathy of the sciatic nerve, rated as 10 percent disabling, for a combined disability rating of 50 percent. However, a TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16 (b) if the Veteran is unemployable by reason of service-connected disability but fails to meet the percentage thresholds in 38 C.F.R. § 4.16 (a). The Board does not have jurisdiction over the issue of entitlement to extraschedular TDIU in the first instance. Rather, if the Board finds there is a reasonable possibility the Veteran is entitled to extraschedular TDIU, the Board must remand the case to VA's Director of Compensation Service for consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Entitlement to a TDIU is an individualized determination, specific to each Veteran's particular circumstances, e.g., their history, education, skills, and training. Todd v. McDonald, 27 Vet. App. 79, 85 (2014). Here, the evidence of record shows that the Veteran has been unemployed since at least 1981, ostensibly for health-related reasons. He was last employed in construction. Educationally, he attended two years of college. The evidence does not indicate what he studied in college. As such, the Board finds no evidence that he had education, training, or experience pertaining to traditionally sedentary jobs in fields such as administration or management. Thus, for the period prior to March 27, 2007, the Board finds it reasonable that the combined effects of his lumbar spine disability, which resulted in decreased motion, stiffness, weakness, spasms, and pain, and his left lower extremity radiculopathy of the sciatic nerve, which resulted in radiating pain to the left leg rendered him unable to secure or follow a substantially gainful occupation prior to March 27, 2007. Referral is therefore appropriate here and is further discussed in the remand portion of this decision. The Veteran met the schedular requirements for a TDIU from March 27, 2007. At that time, he was service-connected for posttraumatic stress disorder (PTSD) and unspecified depressive disorder, rated as 50 percent disabling, IVDS with spinal stenosis and herniated discs, status-post surgical intervention, rated as 40 percent disabling, and left lower extremity radiculopathy of the sciatic nerve, rated as 10 percent disabling, for a combined total disability rating of 70 percent. At issue is whether the Veteran's service-connected disabilities rendered him totally unemployable from that date. As discussed above, the Veteran has been unemployed since at least 1981 and has only worked in construction. While he attended two years of college, there is no evidence to support that he has the education, training, or experience to participate in a traditionally sedentary position. Further, even if he had such education and training, the symptoms of his service-connected acquired psychiatric disorder, including weekly panic attacks, suspiciousness, depressed mood, disturbances of motivation and mood, anxiety, and chronic sleep impairment, would result in occupational and social impairment that would adversely impact such work. This disability, combined with the symptoms of his musculoskeletal and nerve disabilities as previously described, would undoubtedly impact his ability to secure or follow a substantially gainful occupation. Thus, the Board finds that entitlement to a TDIU from March 27, 2007 is warranted. REASONS FOR REMAND Entitlement to an effective date earlier than March 27, 2007 for the award of TDIU is remanded. While the Veteran did not meet the schedular requirements for a TDIU prior to March 27, 2007, the record reasonably reflects that he was unable to secure and maintain substantially gainful employment prior to that date. Referral to VA's Director of Compensation Service for extraschedular consideration is warranted. The matter is REMANDED for the following action: Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.