Citation Nr: 1428151 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 07-21 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to July 10, 2007. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from April 1967 to June 1969, with service in the Republic of Vietnam, for which he received a Combat Action Ribbon. He also had subsequent periods of active service from October 1991 to February 1992 and July 1992 to September 1992, with additional service in the United States Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In a March 2013 decision, the Board denied a TDIU for the period prior to July 10, 2007. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans' Claims (Court). In December 2013, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans' Affairs (the Parties), vacated the March 2013 decision to the extent of the denial of a TDIU for the period prior to July 10, 2007, and remanded the matter to the Board for action consistent with the terms of the JMR. FINDING OF FACT The Veteran has been unable to secure and follow a substantially gainful occupation, due to his service-connected PTSD, since he filed his claim of entitlement to service connection for PTSD on November 29, 2004. CONCLUSION OF LAW The criteria for TDIU have been met since November 29, 2004. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION This issue is back before the Board pursuant to the JMR. At the outset the Board notes that in a recent case the Court provided the following: Thus, when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed. Carter v. Shinseki, ---Vet. App. ----, No. 12-0218, 2014 WL 2050843 at *7 (May 20, 2014). Pursuant to this guidance, the Board has focused on the terms of the JMR. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (the schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). A TDIU is merely an alternate way to obtain a total disability rating without being rated 100 percent under the Rating Schedule. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In addition to ratings based on average impairment of earning capacity, total disability compensation ratings may be assigned under the provisions of § 3.340. 38 C.F.R. § 3.341 (2013). Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Such total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2013). Satisfying the requirements for a TDIU is merely an alternate way to obtain a total disability rating without being rated 100 percent under the Rating Schedule. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Following review of the record, taking into consideration the litigation since the March 2013 decision and the terms of the JMR granted in December 2013, the Board concludes that the evidence is in equipoise as to whether the Veteran was rendered unable to secure and follow a substantially gainful occupation prior to July 10, 2007. Review of the record shows that since the Veteran has been determined to have total social and occupational impairment, as of July 2007, he has continued to engage in the same activity that he did prior to that finding as far as his employment. For example, a January 2012 clinical summary from a Vet Center documents that he still engages in his self-owned car repair activity but cannot build more business contacts and loses customers because of the effects of his PTSD on his ability to interact with customers. While it appears clear that there is ambiguity about how much the Veteran works in his self-owned car repair activity, after reviewing all evidence of record, the Board concludes that the evidence is in equipoise as to whether the Veteran has been able to secure and maintain a substantially gainful occupation at any time since he filed his claim of entitlement to service connection for PTSD on November 29, 2004. PTSD has been rated s 70 percent disabling effective November 29, 2004. The percentage requirements of § 4.16(a) are thus also met. Therefore, the appeal must be granted in full. That is, TDIU is warranted from the date that VA received his claim, and the effective date of award of service connection for PTSD - November 29, 2004. In cases such as this, the Court has been clear that the Board must address whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Here, the Veteran has one service-connected disability, PTSD. There is no need to stage the ratings in this case. Rather, the earliest possible date for award of a higher rating, in this case award of TDIU, is the date that VA received his claim and established entitlement to service connection for PTSD. See 38 U.S.C.A. § 5110 (a) (West 2002); 38 C.F.R. § 3.400 (2013). As the Board here grants the benefit sought in full, there is no need to address whether VA has met its duties to notify and assist under the Veterans Claims Assistance Act of 2000 or whether there has been compliance with previous remands in this case. Any error in either regard is necessarily harmless. ORDER TDIU is granted beginning on November 29, 2004, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs