An effective date of February 10, 2021, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted.

Citation Nr: A26069912 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 230612-353871 DATE: July 30, 2026 ORDER An effective date of February 10, 2021, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service connected disabilities precluded him from securing and following a substantially gainful occupation as of February 10, 2021. CONCLUSION OF LAW The criteria for entitlement to an effective date of February 10, 2021, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400, 4.16, 3.2500. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1999 to July 2004. This matter comes before the Board of Veterans' Appeals on appeal from a May 2023 higher-level review rating decision. In the June 2023 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 January 2023 agency of original jurisdiction (AOJ) 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 January 2023 decision, 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. This matter was previously before the Board. The Veteran appealed the Board's May 2025 denial of an earlier effective date for the award of a TDIU to the United States Court of Appeals for Veterans Claims (CAVC). In April 2026, CAVC granted a Joint Motion for Partial Remand (JMPR). April 2026 CAVC Decision. In relevant part, the CAVC JMPR directed the Board to provide adequate consideration and/or explanation regarding three specific pieces of evidence relevant to the Veteran's claim of entitlement to an earlier effective date for a TDIU: (1) the Veteran's difficulty in performing repetitive hand motions, (2) his inability to lift objects away from his body, and (3) his pain when sitting. CAVC also directed the Board to explain what it considers to be sedentary employment. Id. An effective date of February 10, 2021, but no earlier, for the award of a TDIU is granted. The Veteran has been awarded a TDIU effective July 6, 2021. July 2022 rating decision. The Veteran contends that he is entitled to an effective date of February 10, 2021, for his award of a TDIU. June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement); July 2026 Third Party Correspondence (argument of Veteran's representative). Unless specifically provided otherwise, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a)(1); see also 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision. See 38 C.F.R. § 3.2500(h). Specifically, following notice of a decision on an initial claim or a supplemental claim by the AOJ, a claimant may continuously pursue a claim or an issue by timely and properly filing any one of the following: (1) a supplemental claim; (2) a request for higher-level review; or (3) an appeal to the Board. See 38 C.F.R. § 3.2500(c)(1). A TDIU may be assigned where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. TDIU may be assigned on either a schedular or extraschedular basis. 38 C.F.R. § 4.16(a), (b). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component is met when the Veteran is unemployed or marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The non-economic component of the phrase "unable to secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73. The Board is not permitted to consider advancing age or a nonservice-connected disability when determining entitlement to a TDIU. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. A TDIU does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Veteran was in receipt of compensable ratings for the following service-connected disabilities as of February 10, 2021: right clavicle fracture (20 percent); right ankle strain (10 percent); instability, right knee (10 percent); tinnitus (10 percent); blunt trauma with dorsal ganglion cyst, right hand (10 percent); trochanteric bursitis, right hip (10 percent); chondromalacia patella, right knee (10 percent); chondromalacia patella, left knee (10 percent); and chronic ligament sprain, left ankle (10 percent); instability, left knee (10 percent). May 2023 rating decision-codesheet. As of February 10, 2021, the Veteran also had noncompensable ratings for the following disabilities: hearing loss, left ear; scar, right cheek; scars, bilateral arms; limited extension, right hip; limited flexion, right hip; and surgical scar, right clavicle. Id. The Veteran was awarded service connection for PTSD with major depressive disorder and a traumatic brain injury (TBI) with a rating of 70 percent, effective July 6, 2021. November 2021 rating decision; July 2022 rating decision. The Veteran was subsequently awarded a TDIU with an effective date of July 6, 2021. July 2022 rating decision; May 2023 rating decision. The AOJ found that the Veteran was unable to secure or follow a substantially gainful based largely on the addition of PTSD to the Veteran's service-connected disabilities. The effective date of the PTSD rating is not at issue in this appeal stream; therefore, the issue of entitlement to a TDIU prior to July 6, 2021, depends on the combined effects of the Veteran's other service-connected disabilities prior to that date. The Veteran's January 2022 VA 21-8940, Veterans Application for Increase Compensation Based on Unemployability, was based on multiple conditions, some of which were not service connected until on or after July 6, 2021, the current effective date of his TDIU award. Most notably, the application includes PTSD and migraine headaches. They shall not be considered for purposes of assessing his entitlement to a TDIU prior to July 6, 2021, as they were not service connected during that period. In his application for compensation based on unemployability, the Veteran claimed that he was unable to succeed as a mechanic due to his physical limitations. He stated: "There were some nights that I was incapable of eating dinner because I couldn't even physically hold my head up. My legs are really bad. My right knee is super tender. ... My right ankle is numb and I can't feel it. My balance is really bad, and it hurts to walk and sit. I can stand for about 20 minutes before having to sit down-but that is only if I really concentrate on posture and make sure I'm standing correctly. I can only sit in a rigid chair, nothing soft. Sitting is so uncomfortable that I avoid it and will often just lay down. On a scale of 1-10, my pain is a 10 when I try to sit. I feel like I want to crawl out of my skin. When I lay down, I have to lay flat with a pillow under my knees and my neck perfectly squared. Otherwise I wake up in a lot of pain or not even sleep at all." January 2022 VA 21-8940, Veterans Application for Increase Compensation Based on Unemployability. The Veteran last worked in February 2021 as a production worker. During the 14 months that he worked with his last employer, he had missed 10 to 20 percent of his work time due to illness. He left his employment due to his disabilities. Id. Conversely, the Veteran was given a VA examination for traumatic brain injury that addressed his employment history. Regarding his last employment, he reported that "[h]e had a manufacturing job and was looking for employment in sales when he was involved in a MVA [motor vehicle accident] in 2/2021." July 2021 C&P exam (Initial Evaluation for Residuals of Traumatic Brain Injury (I-TBI) Disability Benefits Questionnaire (DBQ)). As stated, some of the disabilities the Veteran cited in his VA 21-8940 were not service connected until on or after July 6, 2021. A VA examiner assessed the Veteran's functional limitations from service-connected injuries and provided separate assessments for three types of disability. With regard to shoulder and arm conditions, the examiner concluded that the Veteran could perform "heavy work, just limited overhead motions and heavy overhead lifting with right shoulder." March 2022 C&P exam (Individual Unemployability Statement for Shoulder and Arm Conditions DBQ). This is based on a functional impact limitation noted in the Veteran's C&P examination, which stated that the Veteran "may be limited on doing over head motions, repetitive heavy lifting due to" his service-connected injuries. March 2022 C&P exam (Shoulder and Arm Conditions DBQ). With regard to hand and fingers conditions, the examiner concluded that the Veteran could perform "strenuous work but may need reduction to medium work with the right hand." Id. This is based on a functional impact limitation noted in the Veteran's C&P examination, which stated that the Veteran "may need altered job duties to limit repetitive hand motions." March 2022 C&P exam (Hand and Fingers DBQ). Last, with regard to ankle conditions, knee, and lower leg conditions, the examiner concluded that the Veteran could perform "sedentary" work, exerting up to 10 pounds occasionally and "sitting most of the time." Id. (Individual Unemployability Statement regarding DBQ Ankle Conditions). This is based on a functional impact limitation noted in the Veteran's C&P examination, which stated that the Veteran "may not be able to stand for long periods of time, do repetitive stair climbing, repetitive squatting/kneeling and should be allowed to change positions as need for comfort." March 2022 C&P exam (Ankle Conditions DBQ); id. (Knee and Lower Leg Conditions DBQ). "Sedentary" is defined as "doing or requiring much sitting." Sedentary, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/ sedentary, Definition 2a (last visited July 30, 2026). The Board interprets this to mean that the VA examiner concluded that the Veteran could work in a job where he primarily sat down. As noted above, the question of whether functional limitations identified by medical examiners render a veteran incapable of performing the physical and mental acts required by employment is an adjudicative determination committed to the Board. Geib, 733 F.3d at 1354. The effect of the functional limitations described above clearly would prevent the Veteran from performing physically demanding work. Notably, the VA examiner's conclusion that he could perform even sedentary work is based on one set of limitations pertaining to the Veteran's ankle, knee, and lower leg conditions. It does not account for his other limitations. The Veteran is righthanded and his right hand "freezes up with repetitive movements" or "locks up." The condition is only alleviated with rest or with the use of topical medication. June 2021 C&P exam (Hand and Fingers DBQ). According to the Veteran, he has pain in his right hand "all the time. It hurts to do anything with my hands, they cramp up, I have no grip, no stamina." March 2022 C&P exam (Hand and Fingers DBQ). This evidence calls into question whether the Veteran could even perform a desk job, which typically entails typing and/or the use of a computer. The Veteran has reported that even sitting is uncomfortable and poses challenges. He can only sit in a "rigid chair, nothing soft." According to him, "sitting is so uncomfortable that I avoid it and will often just lay down. On a scale of 1-10, my pain is a 10 when I try to sit." January 2022 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran's service-connected right clavicle condition affects use of his shoulder. The Veteran has reported that he "can't hold a newspaper and read it" and he "can't hold a cup of coffee." Further, he "can't carry a gallon of milk, can't lift anything." March 2022 C&P exam (Shoulder and Arm Conditions DBQ). Last, the Veteran's service-connected hearing loss could pose challenges with workplace communication, particularly on the telephone. With resolution of reasonable doubt in the Veteran's favor, these functional limitations suggest that even a sedentary job would be impractical for the Veteran to perform. (Continued on the next page) ? In sum, with resolution of reasonable doubt in the Veteran's favor, his service-connected disabilities as of February 10, 2021, precluded him from securing and following a substantially gainful occupation consistent with his education and work experience. An effective date of February 10, 2021, but no earlier, for the award of a TDIU is granted. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dunn 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.