Citation Nr: 1603930 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 11-25 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an earlier effective date for the grant of a total disability rating for individual unemployability (TDIU) earlier than October 5, 2011. REPRESENTATION Appellant represented by: Matthew D. Hill , Attorney at Law ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009, July 2010 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the VARO in San Diego, California in January 2011. In September 2014, the Board remanded the Veteran's claim for the scheduling of a videoconference hearing before the Board. In correspondence dated in October 2014, the Veteran's representative indicated that the Veteran withdrew his request for a hearing. In February 2015, the Board remanded the claim for further development. FINDINGS OF FACT 1. Prior to October 5, 2011 the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 50 percent rating; tinnitus rated as 10 percent disabling effective May 29, 2009; bilateral hearing loss rated as noncompensably (0 percent) effective May 29, 2009; and blackheads and boils rated as noncompensably disabling effective May 29, 2009. 2. The Veteran disagreed with the disability rating assigned for his PTSD in February 2010. 3. The Veteran's VA Form 21-8940, formal claim for a TDIU rating, was received on May 17, 2010. 4. The Veteran was last employed on a full-time basis on May 4, 2009. The Veteran has four years of college education. 6. Resolving all reasonable doubt in the Veteran's favor, since May 29, 2009 it was factually ascertainable that a TDIU rating was warranted on an extraschedular basis, as the evidence demonstrates that since this date the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected PTSD. CONCLUSION OF LAW The criteria for an earlier effective date of May 29, 2009, for a TDIU rating, on an extraschedular basis, are met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400, 4.16, 4.19 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In the instant case, the decision below is fully favorable to the Veteran. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Legal Criteria and Analysis Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies), provided that she has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). VA's established policy is 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. Therefore, rating boards should submit to the Director of Compensation for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran seeks an effective date earlier than October 5, 2011, for his TDIU, on an extraschedular basis. He has argues that the proper effective date should be in May 2009. In the present case, prior to October 5, 2011, service connection had been granted for PTSD rated as 50 percent disabling effective May 29, 2009; tinnitus rated as 10 percent disabling effective May 29, 2009; bilateral hearing loss rated as noncompensably (0 percent) effective May 29, 2009; and blackheads and boils rated as noncompensably disabling effective May 29, 2009. The combined disability rating was 60 percent effective May 29, 2009. 38 C.F.R. § 4.25, Table I, Combined Ratings Table. Thus, although he had at least one disability rated at 40 percent disabling, his combined rating was less than 70 percent, and he did not meet the schedular rating criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to October 5, 2011; thus the Veteran seeks entitlement to TDIU on an extraschedular basis. A claim for a total disability rating based on individual unemployability due to service-connected disabilities "is in essence a claim for an increased rating." Norris v. West, 12 Vet. App. 413, 420-22 (1999) (applying the informal claim provisions of 38 C.F.R. § 3.157 to TDIU claims); see Hurd v. West, 13 Vet. App. 449, 451-52 (2000) (applying the law governing effective dates for increased-rating claims to the award of TDIU); Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991) (holding that a "claim for unemployability compensation was an application for 'increased compensation' within the meaning of [38 U.S.C.] § [51]10(b)(2)"). A claim for a rating of TDIU is an increased rating claim that follows the effective date rules of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400(o)(2). See Dalton, 21 Vet. App. at 23; Hurd, 13 Vet. App. at 451-52. In this regard, 38 U.S.C.A. § 5110(a) states that the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase "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.A. § 5110(a). Similarly, the implementing regulation states that the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 C.F.R. § 3.400. An exception to this general rule occurs in a claim for increased compensation. 38 C.F.R. § 3.400(o)(1). An effective date for an increased rating or TDIU claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The Veteran disagreed with the initial disability rating assigned for PTSD in February 2010. In statements dated in April 2010, the Veteran argued that his PTSD rendered him unemployable. In the May 2010 formal application for TDIU, the Veteran stated he had last worked full time on May 4, 2009. Considering the holding in Rice, supra, and the evidence of record, the Board finds that a claim for TDIU has been pending since the award of service connection for PTSD has been in effect, or May 29, 2009. The Board notes that while the evidence shows that the Veteran became unemployed as of May 4, 2009, service connection was not in effect for any disability until May 29, 2009. TDIU may only be awarded based on service connected disabilities. Therefore, the earliest date for which TDIU can be granted is May 29, 2009, the effective date of the grant of service connection for PTSD. The Veteran filed a formal claim of entitlement to a TDIU which was received on May 17, 2010. On his VA Form 21-8940, he indicated that he had been unemployed since May 4, 2009 due to his service-connected PTSD. The claim was initially denied in a July 2010 rating decision. In a July 2012 rating decision, he was granted a TDIU effective October 5, 2011, the date he met the percentage requirements for a TDIU based on his service-connected PTSD and a statement from Dr. Mangold showed that he was unemployable due to his PTSD. He disagreed with the effective date assigned for his TDIU. Here, as noted, there has been a pending TDIU under Rice, since the evidence showed the Veteran was unemployed and he argued it was due to his PTSD, or as of May 29, 2009, the effective date of the grant of service connection for PTSD. In this regard, the Board finds that, resolving all doubt in the Veteran's favor, since May 29, 2009, the Veteran has been incapable of substantially gainful employment due solely to his service-connected disabilities, specifically, his service connected PTSD. Specifically, on his Application for Compensation Based on Unemployability, submitted in May 2010, the Veteran reported that his disability (specifically her PTSD) had affected his full-time employment and he had become too disabled to work. The records shows that the Veteran was last employed as a telecommunications specialist for Sybron Dental Specialists where he had been employed from April 1999 to May 2009 when he was terminated from employment. The Veteran was seen for depressive symptoms in May 2009. The Veteran reported approximately six hours of restless sleep per night and fair memory, focus and concentration. The Veteran reported a history of lifelong anxiety and mood lability and nightmares and a short temper since service. He endorsed problems with anger management and trouble dealing appropriately with conflict. After mental status examination, the examiner assessed the Veteran with major depressive disorder, PTSD, and bereavement related to the death of his father and assigned a GAF score of 50. The Veteran's spouse and son submitted statements dated in June 2009. The Veteran's spouse indicated that he had "triggers" which resulted in flashbacks. She noted that he frequently awoke screaming after he fell asleep at night. She stated that the Veteran had trouble with his temper when things did not go the way he thought they should. The Veteran's son indicated that while he was growing up there were several instances when the Veteran had outbreaks of crying, nightmares, and on one occasion violence. He indicated that the Veteran's crying spells still occurred. He reported that on one occasion the Veteran "hit the deck" because he heard a juice box explode at a children's baseball game and another time when his father had a nightmare after watching the movie Platoon. In February 2010, the Veteran was noted to have a history of depressive symptoms. After mental status examination, the examiner assessed the Veteran with a labile mood, impaired cognition, high anxiety, and disrupted sleep. He was assessed with major depressive disorder, PTSD, and bereavement and assigned a GAF score of 50. In November 2010, the Veteran reported six hours of restless sleep per night. Mental status examination revealed his affect was anxious and his thought processes were linear and goal directed with no suicidal or homicidal ideations or audio or visual hallucinations reported. The Veteran was alert and oriented in three spheres and his insight and judgment were fair to good. The Veteran was assessed with major depressive disorder, PTSD, and bereavement and assigned a GAF score of 55. In December 2010, the Veteran reported that he was sleeping six and one half hours per night which was improved on medication. Mental status examination revealed the Veteran was alert and oriented in three spheres, but his insight and judgment were fair to good. The Veteran was assessed with major depressive disorder, PTSD, and bereavement and assigned a GAF score of 55. At an October 2009 VA examination, the Veteran endorsed poor concentration, exaggerated startle response, depression, angry outbursts, irritability, social isolation, and chronic sleep impairment. He indicated that he had worked for nine years as a manager of telecommunications until being laid off six months prior to the examination. The Veteran indicated that he had been told that it was because of a reduction in force, but he questioned such a rationale as he had previously gotten into "pretty heated shouting matches" with three different coworkers. The Veteran indicated the symptoms affect his total daily functioning which result in increased irritability and social isolation. Plus, he always had interpersonal difficulties and blow-ups on the job while working due to his irritability. He also described symptoms of excessive worry, occasional feelings of hopelessness and helplessness, insomnia, angry outburst and social isolation. He indicated his symptoms affect his total daily functioning which result in insomnia, isolation and irritability. Mental status examination revealed his affect and mood were anxious and depressed. The examiner indicated that the Veteran depression was near continuous, but not severe and did not affect his ability to function independently. However, the examiner noted that the Veteran showed impaired attention and/or focus when trying to read. The Veteran's memory was mildly impaired in terms of forgetting names, directions, and recent events. The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and normal conversation. In a May 2010 letter, the Veteran stated that his PTSD has adversely affected his ability to work. He noted he feels like other people are attacking me when they don't agree with me. He reported having a history of getting into altercations at work. He described an event where he got into an argument with a coworker and had flashbacks of Vietcongs running at him. He noted that after this incident, he received a low performance review and shortly thereafter, was fired. He described how he was let go of two prior jobs due to anger management issues. He also reported he has problems staying focused and is still very angry. At a January 2011 hearing before a DRO, the Veteran testified that he last worked in May 2009 and when he was working he was accused of being very angry and yelling at his co-workers. He reported an incident of getting angry with a gas station clerk and yelling at the man and instances of getting angry at his wife. He reported that he had very poor sleep and when he did sleep he had nightmares. The Veteran testified that he bathed every other day and would probably not bathe that regularly if not for his wife. His spouse indicated that he had periods of anger if he felt she was attacking him for things such as not tidying up the house. She indicated that the Veteran got anxiety when in crowds. She indicated that the Veteran had his children and siblings nearby but very rarely interacted with them. She indicated that she had to ask him to keep himself tidy and remind him to cut his toenails. At a March 2011 VA examination, the reported serious problems with anger, irritability, and impatience. He reported getting into a shouting match at a council meeting while trying to volunteer. He reported problems dealing with supervisors and co-workers when he was working. He endorsed trouble sleeping, depression, and anxiety. He reported a strained relationship with his wife. He indicated that he had no social life and did not like crowds. Mental status examination revealed abnormal mood and affect. He was noted to be irritable with impaired impulse control and outbursts of anger. His thought processes were noted to be abnormal. His judgment was intact but abstract thinking was noted to be absent. His memory was mildly to moderately abnormal with difficulty with retention of highly learned materials and remembering to complete tasks. The examiner assessed the Veteran with PTSD and assigned a GAF score of 48. The examiner noted that the Veteran had no difficulty understanding simple commands but he had some difficulty with complex (two to three step) commands. Additional records document the Veteran's problems with anger management both during work and with his family. Associated with the claims file is a statement from J. Mangold, Ph.D., dated in October 2011. Dr. Mangold conducted a review of the record and concluded that the Veteran's PTSD symptoms resulted in severe occupational and social impairments with deficiencies in the areas of work, family relations, and judgment. He indicated that the Veteran exhibited symptoms such as nearly-continuous panic or depression affecting his ability to function independently, appropriately, and effectively; impaired impulse control (particularly uncontrolled anger); neglect of his personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. To support his opinion he cited, in part, to the medical evidence and DRO hearing described above. He concluded that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service connected PTSD since May of 2009. Although the Veteran does not meet the schedular requirements for TDIU, the Board will consider the issue of entitlement on an extraschedular basis. The Board notes that the very question of entitlement to TDIU rating on an extraschedular basis prior to October 5, 2011, was addressed by the VA Director of Compensation Services, who concluded that the evidence did not support the contention that PTSD or any other service-connected disabilities were so exceptional or unusual, as to render the use of the regular rating schedule standards impractical. As this issue has been considered by the Director in the first instance, the Board now has jurisdiction to consider the issue. Considering the evidence above and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation prior to October 5, 2011 (his current TDIU effective date), due to his service-connected PTSD. The record is clear that the Veteran struggled with anger management. Notably, his GAF scores ranged mostly between 48 to 55 which denotes moderate to severe impairment. At times, his memory was noted to be moderately impaired. During the time period prior to October 5, 2011, he was also noted to have impaired attention and focus, and at times thought process was impaired. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has been unemployable since he was last employed in May 2009. Therefore, an earlier effective date of May 29, 2009 is warranted. The Board recognizes that at times, during the time frame between May 29, 2009 and October 5, 2011, the Veteran was noted to be only mildly impaired by his PTSD symptoms. However, the record shows that these were only temporary improvements and that, overall, the Veteran's PTSD symptoms rendered him unable to maintain substantially gainful employment. In short, based on the aforementioned evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to an earlier effective date of May 29, 2009, for his TDIU, on an extraschedular basis. May 29, 2009, is the effective date of the grant of service connection for PTSD at which time he was also unemployed. ORDER An earlier effective date of May 29, 2009, for a TDIU rating, on an extraschedular basis, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs