Citation Nr: 25004397 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 09-50 702 DATE: April 1, 2025 ORDER Entitlement to an effective date of June 13, 2009, but no earlier, for the award of a total disability rating based upon individual unemployability (TDIU) is granted. Entitlement to an effective date of June 13, 2009, but no earlier, for the award of Dependents' Educational Assistance (DEA) is granted. FINDINGS OF FACT 1. Beginning June 13, 2009, the evidence is in relative equipoise as to whether the Veteran was rendered unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 2. Given the Board's grant herein of an effective date of June 13, 2009, for the award of a TDIU, the Veteran is eligible for DEA under 38 U.S.C. Chapter 35, effective June 13, 2009. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an effective date of June 13, 2009, but no earlier, for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16(b). 2. The criteria for an effective date of June 13, 2009, but no earlier, for the award of DEA are met. 38 U.S.C. §§ 3501, 5113; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from June 1979 to September 1982, and had a period of active duty for training (ACDUTRA) in June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board for additional development in March 2015, October 2018, and October 2020. In a June 2021 decision, in pertinent part, the Board denied entitlement to an initial increased rating for the Veteran's degenerative arthritis of the lumbar spine (in excess of 10 percent from April 14, 2007, to December 18, 2008, in excess of 20 percent from December 19, 2008, to January 5, 2021, and in excess of 40 percent from January 6, 2021, onward) and did not address the issue of entitlement to a TDIU. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2022 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and remanded the matter to the Board for further adjudication consistent with the JMPR. In a January 2022 rating decision, the RO granted a TDIU and DEA, both effective January 6, 2021. In May 2022, the Board remanded the issue of entitlement to a TDIU prior to January 6, 2021, as inextricably intertwined with the remanded increased rating claims. In a November 2022 rating decision, the RO awarded an earlier effective date of July 20, 2010, for the awards of a TDIU and DEA. In August 2023, the Board remanded the issue of entitlement to a TDIU prior to July 20, 2010, for referral to VA's Director of Compensation Service (Director) for consideration of an extraschedular TDIU in the first instance. The issue of entitlement to DEA prior to July 20, 2010, was remanded as inextricably intertwined with the TDIU claim. In a January 2024 Advisory Opinion, the Director denied entitlement to an extraschedular TDIU prior to July 20, 2010. In March 2024, the RO issued a Supplemental Statement of the Case regarding the claims for entitlement to a TDIU and DEA prior to July 20, 2010. The matter has since been returned to the Board. As an aside, the Board acknowledges that the Veteran testified at a Board hearing before another Veterans Law Judge (VLJ) in October 2019. However, that hearing was regarding a different case - Docket Number 17-41 782. Furthermore, the Veteran indicated he did not want a Board hearing in his December 2009 VA Form 9 for this matter, and in February 2022, the Veteran declined an additional Board hearing in Docket Number 17-41 782 after he was notified that the October 2019 hearing VLJ was no longer employed by the Board. Therefore, the Board finds the Veteran does not desire a hearing in this matter. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to an effective date prior to July 20, 2010, for the award of a TDIU Under Rice v. Shinseki, a request for a TDIU is part and parcel of an increased rating claim when raised by the record. Here, in its August 2023 Remand, the Board determined that the evidence raised a reasonable possibility that the Veteran may be unemployable by reason of his service-connected disabilities prior to July 20, 2010. Therefore, the Board finds that the issue of entitlement to a TDIU prior to July 20, 2010, is properly before the Board. For the appellate period prior to July 20, 2010, the Veteran is in receipt of the following ratings for his service-connected disabilities: degenerative arthritis of the lumbar spine (rated 40 percent disabling from April 14, 2007); radiculopathy of the right lower extremity (rated 10 percent disabling from April 14, 2007), radiculopathy of the left lower extremity (rated 10 percent disabling from April 14, 2007), and fractured right 4th finger (rated 0 percent disabling from April 17, 2007). The Veteran's combined disability rating for the appellate period prior to July 20, 2010, is 50 percent. Thus, the Veteran does not meet the schedular threshold for a TDIU under 38 C.F.R. § 4.16(a) for the appellate period prior to July 20, 2010. However, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that veterans who fail to meet the schedular criteria for a TDIU rating shall be considered for such a rating on an extra-schedular basis. See 38 C.F.R. § 4.16(b). As noted previously, in its August 2023 Remand, the Board directed the RO to refer the Veteran's claim for a TDIU prior to July 20, 2010, to the Director for an initial determination regarding entitlement to an extraschedular TDIU. In a January 2024 Advisory Opinion, the Director denied entitlement to an extraschedular TDIU prior to July 20, 2010. In accordance with 38 C.F.R. § 4.16(b), the issue may now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director's decision to be "in essence the de facto decision of the agency of original jurisdiction" and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). 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." 38 C.F.R. § 3.340(a)(1). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, 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. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. See 31 Vet. App. 58 (2019). The economic component means 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. Marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(b). Recently, the Court has qualified the meaning of "employment in a protected environment" within the context of 38 C.F.R. § 4.16(a). In Labruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024), the Court defined "employment in a protected environment" as "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). After careful consideration of the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran was rendered unable to secure and follow a substantially gainful occupation due to his service-connected disabilities beginning June 13, 2009, to warrant an earlier effective date for the award of a TDIU. As to the economic component of a substantially gainful occupation, the evidence is in relative equipoise as to whether the Veteran was gainfully employed until June 12, 2009. In his January 2022 TDIU claim application, the Veteran reported that his last date of full-time employment was June 12, 2009. See also January 2011 VA mental health inpatient E & M note (Veteran reported he last worked in June of 2009); May 2013 VA "Mental Disorders" examination report (Veteran reported he last worked in 2009 and that he retired after the onset of medical problems); November 2022 VA PTSD and "Mental Disorders" examination reports (Veteran reported he retired in 2009). The Veteran explained that he worked in transportation at WMATA (Washington Metropolitan Area Transit Authority) from September 1986 to June 12, 2009, and the Board finds that his highest gross earnings per month were above the poverty threshold for one person during the period on appeal. See January 2022 TDIU claim application. The Board acknowledges that there is some evidence suggesting the Veteran had additional employment after June 2009. See August 2009 VA physical therapy initial evaluation note ("Pt is working at Metro"); October 2019 Board hearing transcript (Veteran testified that he stopped working as a Metro train operator in 2012); November 2021 VA PTSD examination report (Veteran reported he retired due to medical reasons in 2012). However, the evidence reflects that the Veteran was out of work on disability for a period between 2009 and 2012, following surgery for removal of a lipoma in his back. See November 2010 VA psychology consult ("The veteran is employed with Metro and he is currently on leave due to physical health issues. The veteran reports that he took leave from his job due to having cancer in his back. The veteran has been on leave since June, 2009."); February 2011 VA psychiatry note (Veteran reported he "[w]as a bus operator with metro. Currently out of work on disability - has cancer in his back - s/p surgery in 2009 and 2010."); May 2012 VA back examination report (Veteran reported he has not worked since the surgery in his back for removal of growth). Therefore, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that he has not worked in a gainful capacity since June 13, 2009. As to the non-economic component of a substantially gainful occupation, the record reflects that the Veteran has a high school education and previously worked in security, as a manager at a parking garage, as a train operator, and as a bus operator. See February 2011 VA psychiatry note; May 2013 VA "Mental Disorders" examination report; November 2021 VA PTSD examination report; January 2022 TDIU claim application. On review, the Board finds that the evidence is in relative equipoise as to whether the Veteran was unable to perform the physical requirements of his previous occupations due to his service-connected disabilities beginning June 13, 2009. In a February 2008 VA back examination report, the Veteran endorsed persistent low back pain that radiates to the left lower extremity and involves muscle fatigue. He noted that when the pain gets worse, he is unable to walk, and that he has about 3 to 4 flare ups each week (resulting in 10 out of 10 pain) due to lifting, standing, bending, sneezing, or other physical activities. See id. The Veteran stated that he must limit his daily activities due to low back pain, that he is unable to stand for long periods of time, and that prolonged sitting also causes pain. See id. In a June 2009 VA primary care note, the Veteran explained that he "[w]orks as a metro conductor [and] [f]inds that standing and sitting frequently cause[s] [his] back to hurt more." In a July 2009 VA physical medicine rehabilitation long term care consultation note, the Veteran stated that he was on medical leave from his job as a train operator for the previous 3 weeks due to back pain. In his January 2022 TDIU claim application, the Veteran reported that he left his last job because of a disability and noted that "degenerative arthritis of the spine" and "paralysis of the sciatic nerve" were service-connected disabilities preventing him from securing and following any substantially gainful occupation. Based on the foregoing evidence, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to an effective date of June 13, 2009, but no earlier, for the award of a TDIU. 2. Entitlement to an effective date prior to July 20, 2010, for the award of DEA The Veteran's DEA award is currently effective July 20, 2010. He asserts that an earlier effective date is warranted. Except as provided in subsections (b) and (c), effective dates relating to awards of DEA under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(b)(3). DEA benefits may be paid to dependents of a veteran with a service-connected disability that is rated permanent and total. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. For DEA benefits purposes, a service-connected disability rated at 100 percent disabling under VA's Schedule for Rating Disabilities or a TDIU qualify as a service-connected disability that is rated permanent and total. 38 C.F.R. §§ 3.340, 3.341, Part 4. Given the Board's award of a TDIU beginning June 13, 2009, the Board finds that an effective date of June 13, 2009, but no earlier, for the award of DEA is warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.