Citation Nr: 1326205 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-07 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior January 29, 2008, for a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which assigned an effective date of January 29, 2008, for the grant of a TDIU. The Board remanded the claim on April 1, 2013, in order to afford the Veteran a Board hearing. The RO subsequently requested the Board to withdraw the April 2013 remand because the Veteran had withdrawn in writing his request for a Board hearing. The Board's review of the record confirms that the Veteran submitted a statement in September 2011 indicating that he desired to withdraw his request for a Board hearing. Therefore, the prior remand directive to schedule the Veteran for a Board hearing is withdrawn. FINDINGS OF FACT 1. Service connection is in effect for PTSD with depression; the disability has been assigned a 70 percent rating since the effective date of service connection, August 29 2003. 2. The Veteran's current claim for entitlement to a TDIU was received on August 28, 2006. 3. The Veteran was unemployable due to service-connected disability as of August 28, 2006; it is not factually ascertainable that he became unemployable due to service-connected disability during the one year prior to August 28, 2006. CONCLUSION OF LAW The criteria for an effective date of August 28, 2006, but no earlier, for a TDIU have been met. 38 U.S.C.A. §§ 5107, 5110 (West. 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The record reflects that the Veteran was provided all required notice in a letter sent in November 2006, prior to the initial adjudication of the claim. The record also reflects that the Veteran's service, VA and private treatment records have been obtained. In addition, pertinent records have been obtained from the Social Security Administration (SSA), and the Veteran was afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. General Legal Criteria 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. 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), 4.15 (2012). A TDIU may be assigned if 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 disabilities, provided that at least one disability is ratable at 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. §§ 3.340, 3.341, 4.16(a). The effective date of an increased award of disability compensation will be the earliest date that it is factually ascertainable that an increase in disability had occurred if the claim is received within one year after such date; otherwise, the effective date of the increase will be the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran was granted service connection for PTSD and depression in an April 2006 rating decision. The disability was assigned a 70 percent rating from the effective date of service connection, August 29, 2003. On August 28, 2006, the Veteran filed a claim for a TDIU. This claim was denied in a July 2007 rating decision. Although the Veteran did not appeal the denial, new and material evidence consisting of a December 2007 letter from the Veteran's psychiatrist was received within the appeal period. Therefore, the July 2007 rating decision did not become final. See 38 C.F.R. § 3.156(b). In light of the above, the date of receipt of claim for purposes of determining the proper effective date of the award of a TDIU is August 28, 2006. The other matter that must be decided in this case is the earliest date that it is factually ascertainable that the Veteran was unemployable due to his service-connected psychiatric disability. The evidence of record establishes that the Veteran was working as a chiropractor (out of his home) at the time he was involved in an accident while riding his motorcycle in June 2003. As a result of this accident, the Veteran was in a coma and sustained injuries of his cervical spine and brain. He was also involved in another motor vehicle accident in August 2003, when he was rear ended. See private treatment records. In his VA Form 21-8940, the Veteran asserted that his PTSD prevented him from securing or following any substantially gainful occupation, that he last worked full time in May 2003, and that his disability affected full time employment in August 2003, which was the same month he became too disabled to work (August 23, 2003). In several January 2007 statements, the Veteran reported that he decreased his work from 48 hours a week to 24 hours a week between September 2003, following his accidents, and December 2004, and further decreased his work to 16 hours per week between January 2005 and December 2005. He reported that he stopped working completely following a January 17, 2006, VA review examination for PTSD because that examination brought up more thoughts of sexual molestation and flashbacks/memories and fears of people knowing where he lived and being in his house. The report of a January 2006 VA examination for PTSD reflects that the Veteran reported last working in September or October 2005 "seeing one or two patients" in his chiropractic business, and that he was now unable to do so for physical reasons. The examiner noted that the Veteran appeared to have been able to obtain schooling and maintain a variety of types of work for others and for himself until the time of his motor vehicle accident. The January 2006 VA examiner also noted the significance that the Veteran's PTSD symptoms pre-existed the motorcycle accident. The report of a January 2007 VA examination notes that the Veteran reported working as a chiropractor in the past, until January 2004, and that he had a motorcycle accident in June 2003 that made it difficult for him to work due to lack of strength and muscle spasms. It was noted that he continued to be unemployed and continued to have severe difficulties of chronic pain and muscle spasms. The examiner noted that the Veteran was clear to state that he stopped working for physical reasons after his motorcycle accident. The examiner opined that it was more likely than not that the Veteran, "has not been incapable of working due to his mental and emotional symptoms as related to his military sexual trauma." The report of a November 9, 2007, psychiatric diagnostic interview conducted by Dr. M.D.T. notes that the Veteran was a medically retired chiropractor who had not been practicing since May 2004 as a result of his psychiatric disability Dr. T. indicated that while the Veteran was able to practice chiropractic medicine for a number of years while he had PTSD, PTSD became seriously exacerbated as a result of his motor vehicle accident and the head trauma thereafter. As a result of this head trauma, the Veteran became entirely unable to work in his chiropractic medical practice. His ability to be around people and avoid reactivity, paranoia, labile mood issues, and poor impulse control became very poor. This culminated with the attack in May 2004 by a patient in his office that was the "last straw," rendering him unable to work. It was Dr. T.'s opinion that the Veteran was 100 percent psychiatrically disabled as a result of his PTSD. In a December 2007 statement, Dr. T. reported that the Veteran was a chiropractor through most of his life and that his ability to navigate that type of complex environment with multiple different patients is absolutely non-existent. In addition, his ability to navigate any kind of gainful employment that would involve contact with people in any fashion is also non-existent. Dr. T. determined that the Veteran did not have the skill set that would allow him to do any gainful employment in the home-based environment. It was Dr. T.'s medical opinion that the Veteran was unemployable due to his PTSD. Although there is some evidence that indicates that the Veteran's psychiatric disability was not sufficiently severe to render him unemployable when his claim was filed on August 28, 2006, the Board has not found that evidence to be persuasive. In particular, the Board notes that the January 2007 VA examiner's opinion against the claim is not well supported. While it is clear that the Veteran has severe non service-connected disabilities that caused him to stop working full time, the examiner did not actually explain why the service-connected psychiatric disability was not sufficient by itself to render the Veteran unemployable. In the Board's opinion, the Veteran's statements and the evidence prepared by Dr. T. supporting the claim are at least in equipoise with the against the claim. Therefore, the Board concludes that the evidence satisfactorily establishes that the Veteran was unemployable due to service-connected disability when the claim for a TDIU was filed. The Veteran has not alleged that he became unemployable due to his psychiatric disability during the one year period prior to August 26, 2006. As noted above, he reported in his TDIU claim that his PTSD rendered him unemployable in August 2003. Although he has also reported that he worked part time for a period of time after August 2003 and stopped working completely shortly after a VA examination in January 2007, it is not factually ascertainable that he became unemployable due to his psychiatric disability at any particular point during the year prior to the filing of his claim. Therefore, the Board has determined an effective of August 26, 2006, but not earlier is warranted for the award of a TDIU. In reaching this decision, the Board has resolved all reasonable doubt in the Veteran's favor. ORDER Entitlement to an earlier effective date of August 26, 2006, but not earlier, for a total disability rating based on individual unemployability due to service-connected disability is granted, subject to the criteria governing the award of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs