Case 24031884

NEIL T. WERNER · 2024 · Case ID: 24031884

MIXED

Summary

The veteran, who served from February 1982 to February 1985, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU) for the period of October 7, 2005, to October 2, 2007. The veteran's claim for TDIU was previously remanded multiple times due to failure to cooperate with development. After a Court of Appeals for Veterans Claims order in January 2024, the veteran finally submitted the requested income and employment history in May 2024. The Board reviewed the evidence, including the veteran's service-connected disabilities of migraine headaches (50% disabling), back disability (20% disabling), anal fissure (20% disabling), left lower extremity radiculopathy (10% disabling), and acne (0% disabling). The Board found that the veteran's employment during the period of October 7, 2005, to October 2, 2007, was marginal, with part-time work earning less than the poverty threshold and potentially in a sheltered environment. Considering the combination of her service-connected disabilities, particularly the severe headaches and limitations from the back condition and radiculopathy, the Board found that the veteran was unable to secure or follow substantially gainful employment. Applying the benefit of the doubt, the Board granted entitlement to TDIU for the period of October 7, 2005, to October 2, 2007. The Board also considered an earlier effective date for TDIU but found no basis for it in the record. The claim for an increased rating for left leg sciatic radiculopathy was noted as still pending development and not addressed by the Board.

Rationale

Service-connected disabilities met schedular requirements for TDIU; Marginal employment during period of appeal; Disabilities rendered veteran unable to secure/follow substantially gainful occupation

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

08-13 106A

Full Decision Text

Citation Nr: 24031884
Decision Date: 10/16/24 Archive Date: 10/16/24

DOCKET NO. 08-13 106A
DATE: October 16, 2024

ORDER

Entitlement to a total disability rating based upon individual unemployability (TDIU) from October 7, 2005, to October 2, 2007, but no earlier, is granted.

FINDING OF FACT

The most probative evidence of record shows that the Veteran's claims for a TDIU has been pending since she filed her October 7, 2005, claim for a higher rating for a back disability and she was unable to secure or follow substantially gainful employment as a result of her service-connected disabilities at all times from October 7, 2005, to October 2, 2007, but no earlier.

CONCLUSION OF LAW

From October 7, 2005, to October 2, 2007, but no earlier, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5101, 5107; 38 C.F.R. § 3.1(p) (2014); 38 C.F.R. §§ 3.102, 3.151, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1982 to February 1985.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which denied a rating in excess of 20 percent for the back disability.

In September 2010, the Veteran testified at a hearing before the undersigned. A transcript is of record.

This appeal was previously before the Board in August 2011 and January 2017, at which time the Board remanded it for additional development.

In a September 2017 rating decision, a TDIU was granted from October 2, 2007, and therefore, entitlement to a TDIU is only being considered prior to that date. See AB v. Brown, 6?Vet. App.?35 (1993) (in an appeal in which the Veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation).

In November 2017 the Board, in pertinent part, denied the Veteran's claim for higher ratings for a back disability effective October 2, 2007, and remanded the claim for a disability rating higher than 20 percent for a back disability and for a TDIU prior to October 2, 2007, for additional development.

Pursuant to the Board's remand directives, the agency of original jurisdiction (AOJ) sent the Veteran a VA Form 21-8940 in January 2018, which requested information regarding income and employment history. The Veteran was notified that her TDIU claim would be considered abandoned and denied if she failed to provide the requested information. See 38 C.F.R. §3.158(a).

However, to date, the Veteran did not return to the AOJ a completed VA Form 21-8940 or any writing that contained the information the Board specifically stated was needed to adjudicate the TDIU claim.

In February 2023, the Board denied the claim for a disability rating higher than 20 percent back disability prior to October 2, 2007, and the claim for a TDIU prior to October 2, 2007, due to the Veteran's failure to cooperate with the development of her claim.

The Veteran appealed the February 2023 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent January 2024 order, which incorporated the parties' Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the February 2023 Board decision to the extent that it denied the claim for a TDIU prior to October 2, 2007.

In May 2024, after the appeal was recertified to the Board following the January 2024 Court order, the Veteran finally submitted her income information and employment history as requested in the November 2017 Board remand directives, including a completed VA Form 21-8940.

The Board notes that while it is regrettable that this appeal has been pending nearly 20 years, any delay in the resolution of the Veteran's claim rests on the Veteran's shoulders. If the
parties' Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the February 2023 Board decision to the extent that it denied the claim for a TDIU prior to October 2, 2007.

The Board notes that while it is regrettable that this appeal has been pending nearly 20 years, any delay in the resolution of the Veteran's claim rests on the Veteran's shoulders. If the Veteran and her representative had provided the requested information regarding her income and employment history prior to May 2024, the Board would have been able to make an informed decision based on the law and facts years earlier.

As an additional matter, the Veteran's claim of entitlement to an initial rating greater than 10 percent for left leg sciatic radiculopathy was remanded by the Board in September 2017 for additional development. It has not been recertified to the Board for appellate disposition. The record indicates that the development has not yet been completed. Therefore, the Board declines to take any further action on this issue at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38?C.F.R. §?3.103; Gray v. McDonald, 27?Vet. App.?313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed).

I. The Concerns Raised by the JMPR

As to the claim for an effective date earlier than October 2, 2007, for the grant of a TDIU, the Board notes that the below decision discuses, in detail, all the pertinent pre-October 2, 2007, evidence to include the following evidence cited by the JMPR-"Documents that are marked as being from OHA Orlando, which appear to have been submitted in May 2010 and may be part of records received from the Social Security Administration (SSA), provide information about Appellant's employment and income concerning the period on appeal, to include information about the YMCA."

Therefore, the Board finds that no further discussion of this concern is needed at this time.

II. Entitlement to a TDIU prior to October 2, 2007.

The Veteran claims that she is entitled to an earlier effective date for the grant of a TDIU.

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 later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary 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(a); 38 C.F.R. § 3.151(a).

As to the claim for earlier effective dates for TDIU, DEA benefits under 38 U.S.C. Chapter 35, because the claims were filed before March 24, 2015, the term "claim" or "application" means 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).

Before March 24, 2015, the term "claim" or "application" meant 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought.

In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See 38 C.F.R. § 3.156(b)(1); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing).

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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155.

For an increase in disability compensation claims, including the Veteran's TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).

In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time.

Lastly, the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) held that increased rating claims may also include a claim for a TDIU.

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also
In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

With the above criteria in mind, the record shows that the Veteran's claim for an increased rating for a back disability was previously part of this appeal stream and this claim as raised her a claim for entitlement to a TDIU. Accordingly, the claim for TDIU is considered part and parcel of that increased rating claim, and has been pending since October 7, 2005, the date VA received the Veteran's claim for a higher rating for a back disability. See 38 C.F.R. § 3.1(p) (2014); Rice v. Shinseki, 22 Vet. App. 447 (2009).

As to an earlier formal claim, the Board finds that the record does not show that the Veteran at any time filed an earlier formal claim for a TDIU as defined by 38 C.F.R. § 3.1(p). Therefore, the Board finds that this avenue cannot provide a basis for granting the Veteran an earlier effective date for a TDIU.

As to an earlier informal claim, the Board notes that record shows written statements from the Veteran as well as medical record were associated with the claims file prior to October 7, 2005. However, the Board finds that neither the writings from the Veteran nor the medical records included a communication of the Veteran's intent to file claims for a TDIU as required by 38 C.F.R. §§ 3.157(b)(1) and MacPhee, super. Therefore, the Board finds that neither the written statements from the Veteran or the medical record act as an earlier informal claim for a TDIU as defined by 38 C.F.R. § 3.1(p). Also see 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(b)(1), 3.400; MacPhee, super. Accordingly, the Board finds that this avenue also cannot provide a basis for granting the Veteran an earlier effective date for her TDIU.

This does not end the Board's review of this case. Instead, because the effective date of an award of disability compensation is the later of the date of claim or the day entitlement arose, the Board will next consider when the Veteran's service-connected disabilities first met the criteria for a TDIU since October 7, 2005. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). This is a key issue.

In this regard, in order to establish a TDIU there must be 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. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 her age or to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him/her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes obtaining or keeping employment difficult, but the ultimate question is whether the veteran
, but not to her age or to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him/her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes obtaining or keeping employment difficult, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. 361.

Under the applicable criteria, 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 service-connected disabilities, provided that one of those disabilities is ratable 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. § 4.16 (a).

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 refers to 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. Id.

As to what constitutes a protected work environment, in Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017) the Court addressed this method of establishing marginal employment which required it to review the meaning of employment in a protected work environment. The Court found that the plain language of § 4.16(a) does not expressly define employment in a protected environment and that the non-exhaustive list of examples of what may constitute employment in a protected environment, i.e.: a family business or sheltered workshop fails to resolve this uncertainty. The Court also determined that it was unable to defer to the Secretary's definition, finding instead that the Secretary had refused to proffer any definition of employment in a protected environment for the Court to analyze. Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board's decision.

Thereafter, in LaBruzza v. McDonough, 2024 U.S. App. Vet. Claims LEXIS 72, *27 (Jan. 24, 2024), the Court recently defined "employment in a protected environment" as "employment in 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." While the Veteran reported he had been moved to three different positions to accommodate his panic attacks, neither the Veteran nor the record clarify whether the position changes were accommodations under the American with Disabilities Act (ADA), which by definition are not shielding a veteran from competition in the employment market. Id. at *29. Employment is not "in a protected environment" simply because a veteran receives workplace accommodations for service-connected disabilities or remains employed despite being occupationally impaired. Id. at *31.

The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. See Cantrell, supra; LaBruzza, supra. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types 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). Id.

It follows that the phrase "substantially gainful employment" in context of the preceding phrase "unable to secure or follow" essentially refers to the veteran's ability to earn income above the poverty threshold for one person, unless she is only capable of employment that is "marginal," as must be shown by inability to earn income above poverty threshold without some extraordinary benevolence of an employer.
, 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). Id.

It follows that the phrase "substantially gainful employment" in context of the preceding phrase "unable to secure or follow" essentially refers to the veteran's ability to earn income above the poverty threshold for one person, unless she is only capable of employment that is "marginal," as must be shown by inability to earn income above poverty threshold without some extraordinary benevolence of an employer. By implication, even if it is shown that the veteran had no income at all due to unemployment throughout the rating period on appeal does not mean or imply that she had no such earning capacity, let alone further implying that she was unable to do so due to the limitations imposed by her service-connected disability. To this end, the Secretary observed directly in point that "the ability or inability to earn, rather than the earnings themselves, must be the determining factor." 55 Fed. Reg. 31579 (Aug. 3, 1990) (emphasis added).

Given that the inquiry before the Board is whether the Veteran is entitled to a TDIU from October 7, 2005, to October 2, 2007, and her reports of working part-time during this time period, the Board will also consider the poverty thresholds for 2005 ($10,160), 2006 ($10,488), and 2007 ($10,787). See U.S. Department of Commerce, Census Bureau, Poverty Thresholds, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html.

Here, prior to October 2, 2007, service connection was in effect for:

" Migraine and tension headaches, evaluated as 50 percent disabling;

" A back disability, evaluated as 20 percent disabling;

" Excision of rectal polyps with anal fissure, evaluated as 20 percent disabling;

" Left lower extremity radiculopathy, evaluated as 10 percent disabling, effective July 24, 2006; and

" Acne, evaluated as 0% disabling.

In summary, this record shows that the Veteran met the schedular requirements of 38 C.F.R. § 4.16(a) from October 7, 2005, to October 2, 2007, because she had one disability ratable as 40 percent or more and a combined rating of 70 percent or more. See 38 C.F.R. § 4.16(a).

What remains is a determination that the Veteran's service-connected disabilities, rendered her totally unemployable from October 7, 2005.

In a May 2024 VA Forms 21-8940 the Veteran claimed entitlement to TDIU due, in pertinent part, to her back condition with radicular symptoms and headaches. She reported having completed four years of college. She stated that she had last worked fulltime as a counselor in May 2005. She remained unemployed until April 2006. From April 2006 to March 2007, she was employed as a fitness and nutrition counselor at the YMCA working 20 hours a week, earning a total of $5,735.69 during that time. Sometime in 2007, she worked with pharmaceutical mail orders for two months, working 20 hours a week, earning a total of $1,009.20.

The Veteran's income tax records received in May 2024, show that in 2006 she was employed at the YMCA earning a yearly total of $4,513.18. In 2007, she earned $1,222.51 at the YMCA and $1,009.20 for a different employer, for a total of $2,231.71.

On VA examination in May 2004, the Veteran reported back pain that fluctuated from dull to sharp to throbbing aching and the pain was constant in nature and her back pain radiated to the left thigh lateral side. Her maximum pain was 15/10 with minimal pain on average at 7/10. Her back pain increased with bending lifting objects and cold weather. She managed her symptoms with medication, physical therapy and trigger point injections to the back muscles. She complained of numbness and tingling in both hands and feet and also tiredness in the lower extremities occasionally. The Veteran had difficulty sitting a long period of time and difficulty in driving walking and cleaning. She reported flare-ups four times a week with incapacitating episodes. The Veteran worked as a financial counselor in two jobs about three to ten hours per week. The Veteran reported that she had difficulty at work due to back pain. She also described difficulty with cleaning, bending and lifting things at work so she avoided those activities. She could not tolerate sitting for a prolonged period of time. She stated that this was the reason she was unable to work fulltime.

VA treatment records from 2006 to 2007, recorded complaints of back pain and headaches. She was undergoing chiropractic treatment. The Veteran complained of pain that radiated to her lower extremity and which impacted her ability to exercise. On VA examination in March 2007, the Veteran reported flare-ups approximately once a year, which the examiner estimated resulted in a 20 percent decreased range of motion. The Veteran used a brace for ambulation.

On VA examination in December 2007, the Veteran reported numbness, paresthesias, unsteadiness, fatigue, decreased motion, stiffness and weakness. She had severe, stabbing, sharp, constant pain across the back on a daily basis. The pain radiated to her left lower extremity, causing a deep stabbing and aching pain. The Veteran endorsed severe flare-ups once a year, lasting 1-2 weeks. She needed assistance with activities of daily living during the flare-ups. She could not ambulate more than a few yards. The examiner noted that the Veteran was unemployed and had a history of job hopping.

In December 2007, the Veteran reported severe migraine headache attacks with associated nausea with photophobia and phonophobia approximately twice a month, as well as other headaches from the neck. The severity ranged from 4/10 to 10/10. Reportedly, her headaches resulted in severe pain that interfered with driving long distances.

The determination of whether a veteran is employable is a legal determination, rather than a medical determination.? See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.").?

Read in the light most favorable to the Veteran, the Board finds that, for the period from October 7, 2005, through October 2, 2007, the most persuasive evidence shows that the Veteran's employment over this period was no more than marginal. See Owen, supra; Also see Cantrell, supra; LaBruzza, supra; Lynch, supra.

Specifically, the Board finds that the evidence shows that she worked intermittently and/or part-time work during this time was less than the poverty threshold and/or that she worked in a sheltered environment for at least part of this time. Id. Further, during this time her service-connected disabilities, specifically her migraine headaches, which were determined to be productive of severe economic inadaptability, along with her back disability and left lower extremity radiculopathy, which resulted in limitations with prolonged walking, standing, sitting, bending and lifting, rendered her unable to secure or follow a substantially gainful occupation. Id.

In sum, the Board finds that, the combination of the Veteran's service-connected physical disabilities, with consideration of her employment history and educational background, would more likely than not precluded her from securing or following a substantially gainful occupation from October 7, 2005, through October 2, 2007.? See Owen, supra; Also see Geib, supra; Lynch, supra.

Specifically, her headaches, which resulted in severe impairment, together with her back disability with left lower extremity radiculopathy, which resulted in at least moderate impairment, would negatively impact her ability to effectively work considering her educational and occupational background. Id.

Therefore, with affording the Veteran the benefit of doubt, the Board finds that the record shows that her service-connected disabilities met the criteria for a TDIU from October
with consideration of her employment history and educational background, would more likely than not precluded her from securing or following a substantially gainful occupation from October 7, 2005, through October 2, 2007.? See Owen, supra; Also see Geib, supra; Lynch, supra.

Therefore, with affording the Veteran the benefit of doubt, the Board finds that the record shows that her service-connected disabilities met the criteria for a TDIU from October 7, 2005, through October 2, 2007, because they rendered her incapable of substantial gainful employment for that time. See 38 C.F.R. § 4.16(a); Also see 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra.

This does not end the Board's review of this case. The Board will next consider whether there was a factually ascertainable worsening of the Veteran's service-connected symptoms so that she met the criteria for a TDIU at any time in the one year look back period prior to October 7, 2005. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Horton, supra; VAOPGCPREC 12-98.

However, a review of the record on appeal does not reveal any medical records documenting the Veteran's complaints, diagnoses, or treatment for her service-connected disabilities during this one year look back period. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The pre-October 7, 2005, medical record, overall, provides evidence against such finding.

Moreover, while the Veteran in her December 2012 and May 2004 TDIU Claim forms reported that she had not worked full-time since May 2005 and in her May 2017 TDIU Claim form that had not worked full-time since 2004, all because of her service connected disabilities, the Board finds that her lay claims lack probative value as to her meeting the criteria for a TDIU at any time in the one year period prior to October 7, 2005, because this is a complex medical question and she does not have the required medical training. See Davidson, supra.

Therefore, the Board finds that the record does not shows that the during the one-year look back period her service-connected disabilities met the criteria for a TDIU because they do not show they rendered her incapable of substantial gainful employment. See 38 C.F.R. § 4.16(a).

NEIL T. WERNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Azizi, T.

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.

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