Citation Nr: A25035984 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 250324-521277 DATE: April 18, 2025 ORDER Entitlement to an effective date earlier than August 10, 2022, for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT Prior to August 10, 2022, the Veteran's service-connected disability did not render him unable to obtain or maintain substantially gainful employment consistent with his education, work history, skills, and training. CONCLUSION OF LAW The criteria for entitlement to referral for extraschedular consideration for a TDIU prior to August 10, 2022, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active-duty service with the United States Navy from July 1969 to July 1973. This matter is before the Board of Veterans' Appeals (Board) from a March 21, 2025, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 21, 2025, agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim for entitlement to an earlier effective date for TDIU, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In March 2025 the Veteran submitted correspondence which waived his right to select a different Board review option and to decide his appeal as soon as possible. See Williams v. McDonough, No. 21-7363 (U.S. Vet. App. June 21, 2024). Procedural History The Veteran's procedural history is long and complicated and is summarized herein. The Veteran in January 2024 filed an application for TDIU by submitting VA Form 21-8940. He was granted a TDIU effective January 29, 2024, in the March 20, 2024 rating decision. The RO found that the Veteran was entitled to a TDIU due to the service-connected disabilities of CKD, DMII, BLE lower extremities, and hypertension (HTN), which were granted effective August 10, 2022, and that he met the schedular rating requirement for a TDIU from August 10, 2022 under 38 C.F.R. § C.F.R. § 4.16. The Veteran filed a VA Form 20-0996 Request for Higher Level Review (HLR) in April 2024 which requested an earlier effective date for multiple service-connected issues to include diabetes mellitus type II (DMII) and secondary conditions associated with his DMII which included erectile dysfunction (ED), deep vein thrombosis (DVT), chronic kidney disease (CKD), and bilateral lower extremity (BLE) diabetic peripheral neuropathy (hereinafter secondary conditions). The May 2024 rating decision denied the Veteran's claim for an earlier effective date for TDIU. The Veteran filed a timely Notice of Disagreement in May 2024 (docket 240521-442109). The Board issued a November 2024 decision which remanded the Veteran's claim for an earlier effective date for TDIU as the Board found the claim was intertwined with the Veteran's remanded increased rating claims (this included his increased rating claims for his BLE sciatic and femoral diabetic peripheral neuropathy). The Board's November 2024 decision denied the Veteran's requests for an earlier effective date for service connection for his DMII and secondary conditions going back to July 2011. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a February 2025 joint motion for partial remand (JMPR). In March 2025, the Court granted the parties' motion, vacated the portions of the November 2024 Board decision that denied entitlement to earlier effective dates for DMII and the secondary conditions, and remanded the matters for actions consistent with the JMPR. While the appeal was pending at the Court, the RO issued a February 2025 rating decision which denied the Veteran's increased rating for his BLE femoral and sciatic diabetic peripheral neuropathy and deferred the issue of an earlier effective date for TDIU. The Veteran attempted to appeal the issue of entitlement to an earlier effective date for TDIU in a March 7, 2025, Notice of Disagreement. (docket 250307-516219). This appeal is currently pending at the Board. On March 21, 2025, the RO issued a rating decision which granted the Veteran an effective date of August 10, 2022 for TDIU. The Veteran then filed the March 24, 2025, Notice of Disagreement with respect to this claim and argued for an earlier effective date prior to August 10, 2022. Earlier Effective Dates The general rule regarding effective dates is that the effective date of an evaluation and award of compensation to include TDIU is 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 C.F.R. § 3.400. Generally, the date of receipt of a claim is the date on which the claim was received by VA except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1 (r). The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A specific claim, on the form prescribed by VA, must be filed in order for benefits to be paid, or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101; 38 C.F.R. § 3.151. The VA administrative claims process recognizes "formal" and "informal" claims. A formal claim is one that has been filed on a form prescribed by VA. See 38 U.S.C. § 5101; 38 C.F.R. § 3.151. An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1, 3.155. An informal claim must be written, and it must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Brannon v. West, 12 Vet. App. 32 (1998). The mere presence of medical evidence does not establish an intent to seek service connection. Effective March 24, 2015, a change in regulation required claims to be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160. Instead of informal claims, the new regulation provides a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155. Entitlement to an effective date earlier than August 10, 2022, for TDIU The Veteran contends he is entitled to a TDIU prior to August 10, 2022. Specifically, he contends that his TDIU should be effective back to July 29, 2011. A TDIU application is considered an increased rating claim. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). However, when determining the appropriate effective date for an award of TDIU, whether on a schedular or extraschedular basis, the effective date of such an award cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is predicated. Delrio v. Wilkie, 32 Vet. App. 232 (2019). As an award of TDIU must be based on a service-connected disability or disabilities, the effective date for the award of TDIU cannot, as a matter of logic, predate the effective date for the award of service connection for the disability or disabilities which result in the Veteran's inability to gain or maintain substantially gainful employment. Id; see also Ross v. Peake, 21 Vet. App. 528, 534 (2008), Canady v. Nicholson, 20 Vet. App. 393, 398 (2006). As noted above the effective date for the award of service connection for the disabilities underlying the Veteran's award of a TDIU, specifically DMII and its secondary conditions, is August 10, 2022. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). From February 8, 2013 to August 10, 2022, the Veteran was service connected for tinea versicolor, claimed as jungle rot, effective February 8, 2013, at a non-compensable rate. This does not meet the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a). However, entitlement to a TDIU may still be granted on an extraschedular basis where a veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b). Indeed, "[i]t is the established policy of the [VA] that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. The only issue before the Board is entitlement to an effective date for TDIU prior to August 10, 2022. Therefore, the Board at this time, may only consider the non-compensable disability rating of the service-connected disability of tinea versicolor, which has an effective date of February 8, 2013. The Board's focus will be on the period from February 8, 2013, to August 9, 2022, as prior to February 8, 2013, the Veteran was not service connected for any disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie found the phrase "substantially gainful employment" has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). From February 8, 2013, to August 9, 2022, the Veteran is service connected for tinea versicolor at 0 percent. In the Veteran's VA Form 21-8940 submitted in January 2024 he documented he last worked full time in 2010 and became too disabled to work in February 2011 due to DMII and all secondary conditions, and hypertension. He provided no prior employment information and noted he had completed high school with no additional education or training. The remarks section of his application include a statement that reads, "see SSA (social security administration) records in VBMS dated August 8, 2023, the Veteran has not worked for over 20 years." In VA treatment records in July 2013 the Veteran reported being retired. The Veteran underwent a skin VA examination for his tinea versicolor in February 2014 which diagnosed the Veteran with tinea versicolor. The examiner found no functional impact. The Board has carefully reviewed the Veteran's records for details of his prior employment before retiring. In his September 2023 heart conditions VA examination, the Veteran stated that he went to school and majored in sociology for 3 years, worked in aircraft parts ordering for 16 years, worked with court administration doing paperwork for 8 years, and was a mental health case worker for 8 years before he retired in 2011. See CAPRI records submitted February 2025. If a claimant does not meet the schedular criteria, a total disability evaluation may still be assigned. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's inquiry is whether referral for extraschedular consideration is warranted in light of the evidence. If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director of Compensation Service for an advisory opinion for extraschedular consideration. 38 C.F.R. § 4.16 (b). If the Board determines that a referral is not appropriate, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. Snider v. McDonough, 35 Vet. App. 1 (2021). Here, the Board finds that a referral for extraschedular TDIU consideration is not warranted because the record does not reflect functional impairment such that he would be unable to secure or follow substantially gainful employment as a result of his skin disability prior to August 10, 2022. The Veteran was service connected for a skin disability at 0 percent, with no functional impact. The limited details he has provided as to his employment history note that he retired in 2011 and indicate that he retired due to non-service-connected disabilities during the period of consideration before the Board. See January 2024 VA Form 21-8940. The record does not reflect nor does the Veteran contend that his tinea versicolor has prevented him from obtaining or maintaining substantially gainful employment. The Board finds that the evidence weighs persuasively against a finding that the Veteran is unable to secure and maintain any gainful employment due solely to his service-connected disability prior to August 10, 2022. Further, the Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable solely because of his service-connected skin disability at any time prior to August 10, 2022. The Board is aware of the contentions of the Veteran and the arguments that the Veteran's claims for earlier effective dates for his DMII and secondary conditions prior to August 10, 2022, also include as part and parcel of those claims, an earlier effective date for TDIU. The Veteran contends the July 2011 claims raised TDIU in addition to seeking service connection for DMII and secondary conditions. Further the Veteran contends he is entitled to a TDIU that coincides with the effective dates of the claim for earlier effective dates for his DMII and secondary conditions. See Request for HLR submitted April 2024, Third Party Correspondence submitted July 2024, and Notice of Disagreement submitted March 2025. The Board has considered these contentions but the claim of an earlier effective date for a TDIU based on the earlier effective dates for DMII and secondary conditions is not before the Board in this appeal stream. As of the date of this opinion the Veteran does not have any service-connected disabilities prior to February 8, 2013, and only tinea versicolor at 0 percent prior to August 10, 2022. Given the foregoing, the Board finds that evidence persuasively weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis. Specifically, the Board finds that the Veteran's service-connected disability, when considered alone, does not render him unable to obtain and maintain gainful employment prior to August 20, 2022. Thus, the Board declines to remand the claim for referral for consideration of TDIU on an extraschedular basis. The claim is denied. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.