Citation Nr: A25041222 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240502-437763 DATE: May 6, 2025 ORDER Entitlement to an earlier effective date of February 2, 2014, but no earlier, for the award of a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, for the appellate period from February 2, 2014, to August 17, 2016, he met the schedular threshold for a TDIU, and he was rendered unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date of February 2, 2014, 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(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Marine Corps from September 1979 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2023 Higher-Level Review (HLR) rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). Prior to the December 2023 HLR rating decision on appeal, the AOJ denied the Veteran's earlier effective date claim for entitlement to a TDIU in a March 2023 rating decision, after which the Veteran filed a timely HLR request. In the May 2024 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 2023 AOJ rating decision, which was subsequently subject to higher-level review. 38?C.F.R. §?20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Earlier Effective Dates and TDIU Effective Dates for a TDIU The assignment of effective dates is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Because TDIU is a form of increased rating claim, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). 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 evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "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)(2); see also 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10?Vet. App.?125 (1997). Additionally, a claim for a TDIU is inferred in a claim for increase where the Veteran claims his disability(s) affects his employability or such a claim is reasonably raised by the record. See Rice v. Shinseki, 22?Vet. App.?447 (2009). However, when determining the appropriate effective date for an award of TDIU, the effective date cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of a TDIU is predicated. Delrio v. Wilkie, 32?Vet. App.?232, 236 (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). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. See 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See?38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within?one?year?from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim.?Id.? While a Veteran may submit a separate claim for TDIU, a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial increased rating claim or a regular increased rating claim. Rice v. Shinseki,?22?Vet. App.?447, 453-54?(2009). Once a Veteran: 1) submits evidence of a medical disability, 2) makes a claim for the highest rating possible, and 3) submits evidence of unemployability, the requirement in?38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi,?251 F.3d 1378, 1384?(Fed. Cir. 2001). However, a claim for TDIU can be implicitly raised only where the Veteran proffers some evidence of unemployability. Jackson v. Shinseki,?587 F.3d 1106?(Fed. Cir. 2009). For purposes of?effective?date rules, the mere filing of a claim for service connection does not carry with it an implied filing for a TDIU. A claim for an increased rating has to be pending in order to warrant the application of Rice. Rice v. Shinseki,?22?Vet. App.?447, 453-54?(2009) (holding that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). TDIU A total disability rating 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 the result of service-connected disabilities. See?38?U.S.C. §?1155;?38?C.F.R. §§?3.340, 3.341, 4.16.?Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities.?38?C.F.R. §§?3.341, 4.16, 4.19.? To qualify for a total rating for compensation purposes, the evidence must demonstrate the following: (1) a single disability rated?as 100?percent disabling; or (2) that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.? 38?C.F.R. §?4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki,?22?Vet. App.?447, 452?(2009) (quoting Thun v. Peake,?22?Vet. App.?111, 116?(2008)).?Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski,?1?Vet. App.?164, 168?(1991) (level of education is a factor in deciding employability).? In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of "performing the physical and mental acts required" to be employed. Van Hoose v. Brown,?4?Vet. App.?361, 363?(1993).? In?Ray v. Wilkie,?31?Vet. App.?58?(2019), the United States Court of Appeals for Veterans Claims (Court) held that the phrase "substantially gainful employment" has both an economic and non-economic component. The economic component includes a veteran's ability to earn more than a marginal income as determined by federal poverty thresholds. The non-economic component involves assessing the veteran's actual ability to work. Factors to be discussed include (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to an earlier effective date for the grant of a TDIU. The Veteran is currently in receipt of a TDIU, effective August 17, 2016; however, the Veteran's representative "specifically requests the Board to find that Veteran's Individual Unemployability, with an effective date of August 17, 2016, be found effective on February 2, 2014, or the earliest effective date allowable by law." Third Party Correspondence, received May 2, 2024. The Veteran's representative further asserts that "there are numerous VA treatment records that specifically indicate how his service-connected disabilities were of sufficient severity to produce unemployability" and that "it is factually ascertainable that the Veteran became unemployable in February 2014." Id.; see also VA 21-4138 Statement In Support of Claim, received December 12, 2022. By way of relevant procedural history, following the Veteran's formal TDIU claim in December 2022, the AOJ first denied the issue of entitlement to a TDIU in a March 2023 rating decision based on the rationale that the issue was "moot because your service-connected disabilities are evaluated as 100 percent disabling and no potential entitlement to an earlier effective date for a total disability evaluation based on a grant of individual unemployability is warranted by the evidence of record." Rating Decision - Narrative, dated March 1, 2023. The Veteran filed a timely HLR request, after which the AOJ reversed its previous determination and granted entitlement to a TDIU in the December 2023 rating decision on appeal as follows: "Entitlement to individual unemployability is granted from August 17, 2016 because you are unable to secure or follow a substantially gainful occupation as a result of your service-connected somatic symptom disorder, persistent, and major depressive disorder, left knee chondromalacia limited extension status post arthroscopic debridement, lumbar spine intervertebral disc syndrome (IVDS) with facet joint arthritis, fracture left middle finger, left lower extremity radiculopathy, and right lower extremity radiculopathy. (38 CFR 4.16). Effective December 12, 2022, entitlement to individual unemployability is established based solely on your service-connected somatic symptom disorder, persistent, and major depressive disorder, which is considered 70 percent disabling from that date." Rating Decision - Narrative, dated December 4, 2023. The Board notes that the AOJ assigned an effective date of August 17, 2016, based on the combined effect of the Veteran's various service-connected disabilities at the time. See id. Accordingly, in keeping with the Court's holding in Rice, the Board will consider the Veteran's increased rating claims for those service-connected disabilities that underpinned the award of a TDIU as also implicitly raising a claim for a TDIU. See 22 Vet. App. at 454-455. In so doing, the Board assumes jurisdiction over the issues of entitlement to a TIDU prior to August 17, 2016. Ultimately, the Board has carefully reviewed the evidence of record and, for the following reasons, agrees that the Veteran is entitled to an earlier effective date of February 2, 2014, for the award of a schedular TDIU. As noted above, a total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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 a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38?C.F.R. §?4.16(a). A review of the Veteran's service-connected disabilities prior to August 17, 2016 does not demonstrate that the Veteran had one service-connected disability ratable at 60 percent or multiple disabilities ratable at 40 percent or more. See Rating Decision - Codesheet, dated September 9, 2024. However, for the purposes of one 60 percent disability, or multiple disabilities rated above 40 percent, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system. 38 C.F.R. § 4.16, 4.26. Evaluating the proper combined evaluation of a disability under the "bilateral factor" analysis requires the use of 38 C.F.R. § 4.25 and the Combined Ratings Table found therein as well as applying a multiplying factor as described in 38 C.F.R. § 4.26. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26. 38 C.F.R. § 4.25 provides the following discussion as an example of how to evaluate multiple ratings under Table 1: "Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent." Id. 38 C.F.R. § 4.25 further provides the following example for applying the bilateral factor: "[W]ith disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (with the two 10 percent evaluations being bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 combine to 74 percent, converted to 70 percent as the final degree of disability." Id. At the outset, the Board notes that prior to October 21, 2013, the Veteran had a combined rating of 40 percent due to his left knee chondromalacia and low back strain, which were rated as 30 percent and 10 percent, respectively. See Rating Decision - Codesheet, dated September 9, 2024. As such, the Veteran did not satisfy the requirements for a schedular rating prior to October 21, 2013. Second, in October 2014, the AOJ assigned a "temporary evaluation of 100 percent has been assigned for left knee chondromalacia effective October 21, 2013 based on surgical or other treatment necessitating convalescence. An evaluation of 40 percent is assigned from December 1, 2013." Rating Decision, dated October 15, 2014. However, because a 100 percent schedular rating, including one based on a convalescent rating, precludes a simultaneous assignment of a 100 percent rating based on unemployability, the remaining issue is whether an effective date for a TDIU should be assigned on or after December 1, 2013. Between December 1, 2013 and August 17, 2016, the bilateral factor applies to the Veteran's service-connected bilateral lower extremity disabilities. During this period, the Veteran was service connected for the following disabilities and assigned ratings: left knee chondromalacia (40 percent); low back strain (20 percent); right knee chondromalacia (10 percent); left middle finger fracture (10 percent); right lower extremity lumbar radiculopathy (10 percent); left lower extremity lumbar radiculopathy (10 percent); perforated right tympanic membrane (noncompensable); hemorrhoids (noncompensable); tinea pedis (noncompensable); and right little finger fracture (noncompensable). Rating Decision - Codesheet, dated September 9, 2024. As discussed above, disabilities of both lower extremities, including the bilateral factor, will be considered as one disability for the purpose of one disability rated 60 percent or more. Here, the ratings for the Veteran's bilateral knee and lower extremity lumbar radiculopathies, including the bilateral factor, is combined to 60 percent using the combined rating table in 38 C.F.R. § 4.25; see also 38 C.F.R. § 4.25. Accordingly, the Veteran currently meets the schedular criteria for TDIU from December 1, 2013, but no earlier. See 38 C.F.R. § 4.16(a). Next, the issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (that is, work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). As to the economic component, the record does not contain income records for the entire period on review. Moreover, the evidence of record indicates that the Veteran has engaged in employment activities at various points since December 2013. See, e.g., VA 21-4138 Statement In Support of Claim, received September 28, 2022. However, in a December 2022 statement, the Veteran also stated, "I am not currently full-time and have not been able to work and support myself since leaving my last job in February 2014." VA 21-4138 Statement In Support of Claim, received December 12, 2022. The Veteran further clarified, "I was unable to perform the necessary tasks and duties that were required for that job, I was forced to retire earlier than I intended because my disability symptoms and functional deficiencies, I was not reliable and punctual on a full time basis...." Id. In a statement received in September 2022, the Veteran stated, "I've held 6 jobs since leaving the military. In the past year, I have been written up 7 times at work because of attendance issues, poor performance, and personnel issues and have been suspended 3 times because of attendance issues, poor performance, and personnel issues. I've even previously been passed over for a promotion because of my poor performance." VA 21-4138 Statement In Support of Claim, received September 28, 2022. Ultimately, rather than remanding for income records, the Board will instead afford the Veteran the benefit of the doubt and find that he did not engage in substantial gainful employment after February 2014. As for the non-economic component, the Board notes that the AOJ awarded a TDIU based, in part, on the effects of the Veteran's service-connected disabilities that were in effect during the relevant period of inquiry. Indeed, VA examinations prior to August 17, 2016, discuss significant effects the Veteran's lumbar spine and bilateral lower extremity disabilities had on his ability to perform work activities. See, e.g., C&P Exam, received December 13, 2011 (noting, among other things, that the Veteran's left knee and low back pain each severe symptoms and "moderate-to-severe" deficits in "usual occupation and daily activities"). (Continued on the next page) ? Ultimately, considering the above, the Board will confer resolution of any doubt in the Veteran's favor in finding that he was likely not "capable of performing the physical and mental acts required by employment" from February 2, 2014 - the date identified by the Veteran's representative as when it was "factually ascertainable that the Veteran became unemployable...." Third Party Correspondence, received May 2, 2024; see also Van Hoose, 4?Vet. App.?361, 363 (1993). In doing so, the Board places great probative value on the medical evidence discussed above as well as the Veteran's credible lay statements that he has "not been able to work and support [himself] since leaving [his] last job in February 2014." VA 21-4138 Statement In Support of Claim, received December 12, 2022. However, given the Veteran's specificity of the Veteran's statements regarding the date he was forcibly retired because of his service-connected disabilities at the time, the earliest?effective?date assignable is the effective?date of February 2, 2014, for the?grant?of a TDIU. See?38 U.S.C. § 5110;?38 C.F.R. § 3.400; Rice v. Shinseki,?22?Vet. App.?447, 453-54?(2009). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cross, A. 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.