Citation Nr: 1512971 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 13-13 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 14, 2010. REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD L.S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT The Veteran has been unable to follow substantially gainful employment due to his service-connected post-traumatic stress disorder (PTSD) since February 27, 2010. CONCLUSION OF LAW The criteria for entitlement to TDIU were met on February 27, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided 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. § 4.16(a). The Veteran's rating for PTSD was increased to 70 percent, effective February 19, 2010. The agency of original jurisdiction (AOJ) also granted entitlement to TDIU, effective April 14, 2010, noting a response from the human resource department of the VA Medical Center (VAMC) in Topeka, Kansas, indicated the Veteran remained on its employment rolls until April 13, 2010. The Veteran seeks an effective date of February 27, 2010, for entitlement to TDIU, which he claims was the last day he worked at the Topeka VAMC. Medical evidence supports an effective date of February 27, 2010, as a December 2010 note in the Veteran's VA treatment records by his treating psychiatrist, M.L., M.D., indicated the Veteran had been unable to follow substantially gainful employment since February 2010. In letters dated in February 2010, the Office of Personnel Management informed the Veteran that he had been found disabled from his position as a nursing assistant and that his application for disability retirement had been approved, although he had not yet separated from government employment. Although it is not in dispute that the Veteran remained on his employer's employment rolls; he did not actually perform employment after February 19, 2010 and had been found too disabled to work. Being on the rolls of an employer is not necessarily the same as being able to engage in substantially gainful employment and is not a bar to the award of TDIU. See Bowling v. Principi, 15 Vet. App 1, 7 (2001). Thus, reasonable doubt must be resolved in the Veteran's favor, warranting a grant of an effective date of February 27, 2010, for TDIU. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's representative has stated that the only issue on appeal is entitlement to an effective date of February 27, 2010 for the award of TDIU. Notwithstanding evidence that the Veteran last worked on February 19, 2010, this is a full grant of the benefit on appeal. See AB v Brown, 6 Vet App 35, 39 (1993) (noting a claimant can limit his or her appeal by expressing a clear intent to do so). Moreover, the Veteran would receive the same compensation regardless of the date in February when he last worked. 38 U.S.C.A. § 5111 (West 2014). ORDER Entitlement to an effective date of February 27, 2010, for TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs