Citation Nr: 1632999 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 14-27 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than January 16, 2011, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisolm, Esquire ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from August 1969 to September 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted entitlement to a TDIU due to PTSD and assigned an effective date of January 16, 2011. The Board notes that the Board adjudicated the issue of entitlement to increased ratings for PTSD for the entire appeal period in a June 2014 Board decision. The natter of TDIU was raised in an August 2010 claim in conjunction with the claim for increased ratings for PTSD, and the matter of TDIU was bifurcated and adjudicated separately from the issue of entitlement to increased ratings for PTSD. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. FINDING OF FACT In a July 2012 rating decision, the RO granted entitlement to a TDIU due solely to service-connected PTSD, effective on January 16, 2011; the Veteran's informal claim for increased compensation for service-connected PTSD was received on April 7, 2003; the Veteran was rendered unable to secure and maintain substantially gainful employment due to his service-connected disabilities beginning on January 16, 2011 and, therefore, entitlement to TDIU arose on January 16, 2011; and, the date on which entitlement to TDIU arose is later than the date the claim was received. CONCLUSION OF LAW The criteria for an effective date earlier than January 16, 2011 for the grant of entitlement to TDIU have not been met. 38 U.S.C.A. § 5110 (West 2015); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 provides VA's duties to notify and assist claimants in substantiating their claims for VA benefits. Here, the Veteran was provided notice by letter in February 2011, in which he was notified of the evidence necessary to substantiate the claim for TDIU, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability evaluations and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. Further, VA has satisfied its duty to assist the Veteran in the development of the appeal by obtaining relevant identified evidence, to include service treatment records, VA treatment records, post-service private treatment records, Social Security Administration (SSA) disability records, and lay statements. Also, during the appeal period, the Veteran was provided with VA examinations in May 2007, March 2011, and June 2012, in which the VA examiners provided information regarding the Veteran's PTSD symptoms and their impact on the Veteran's occupational functioning. These examinations, together and in conjunction with the remaining evidence of record, are adequate and allow for the Board to make an informed determination regarding the effective date for the grant of TDIU. Earlier Effective Dates The effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of a grant of a TDIU is generally determined in accordance with the effective date rules for increased ratings, as in this case, because the issue of TDIU was raised in conjunction with a claim for increased rating. See Hurd v. West, 13 Vet. App. 449 (2000); Rice v. Shinseki, 22 Vet. App. 449, 456 (2009). The evidence shows that the Veteran's informal claim for increased compensation for service-connected PTSD was received on April 7, 2003. See April 2003 VA behavioral health initial evaluation; see also June 2014 Board decision (finding that the appeal period for the claim for increased compensation for PTSD begins on April 7, 2003). The Veteran contends that an effective date earlier than January 16, 2013 is warranted. Specifically, the Veteran contends that the appropriate effective date for the grant of TDIU should be the date of the informal claim for increased compensation for PTSD, or April 7, 2003. See August 2010 claim for TDIU. The Board finds no communications prior to April 7, 2003 that may be considered a formal or informal claim, and the Veteran has not contended otherwise. In a July 2012 rating decision, the RO granted entitlement to a TDIU due solely to service-connected PTSD, effective on January 16, 2011. As noted above, the Board adjudicated the issue of entitlement to increased ratings for PTSD for the entire appeal period in a June 2014 Board decision. The Veteran's PTSD was rated by the Board as 70 percent disabling prior to January 16, 2011. The Board notes that though the findings of fact in the June 2014 Board decision regarding the nature and severity of the Veteran's PTSD are binding in this decision, the criteria for entitlement to a TDIU due to PTSD are distinct from the rating criteria for PTSD. When the schedular rating is less than total, entitlement to a TDIU arises when the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Because the Veteran's single disability of PTSD was rated as 60 percent or more during the entire appeal period prior to January 16, 2011, the schedular criteria under 38 C.F.R. § 4.16(a) are met. Next, when determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the evidence shows that the Veteran became unemployed due to his service-connected PTSD symptoms on January 16, 2011. For example, in an October 2012 written statement, the Veteran contended that he stopped working due to irritability and conflicts with supervisors. The evidence shows that the Veteran's last day of work was January 16, 2011. See June 2014 Board decision (finding that printouts of the Veteran's work schedule dated from January 2005 to February 2011 note that the Veteran took multiple days a month of both scheduled and unscheduled leave from his work and eventually stopped working entirely on January 15, 2011). Further, as discussed in the June 2014 Board decision, the Board found that for the rating period from January 16, 2011, the Veteran's PTSD is manifested by total occupational impairment due to symptoms such as complete inference with employment functioning, including inability to perform responsibilities required of him and anger management difficulties. Based on the Board's findings of fact in its June 2014 decision, the Board finds that the evidence shows that the Veteran was rendered unable to secure and maintain substantially gainful employment due to his service-connected PTSD from January 16, 2011. However, the preponderance of the evidence is against a finding that the Veteran was rendered unable to secure and maintain substantially gainful employment due to his service-connected PTSD prior to January 16, 2011. During the appeal period prior to January 16, 2011, the Veteran was employed with the U.S. Postal Service. The Board acknowledges the Veteran's contention that his employment with the U.S. Postal Service prior to January 16, 2011 was marginal employment because it was in a protected environment. See October 2012 Veteran statement. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census (Census), as the poverty threshold for one person. Even where earned annual income exceeds the poverty threshold, marginal employment may exist when the Veteran's employment is limited to employment in a protected environment such as a family business, to self-employment, or to odd jobs. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran's employment during the appeal period prior to January 16, 2011 was marginal employment. The Veteran's annual income during this period was significantly greater than the poverty threshold. The evidence shows that during the appeal period prior to January 16, 2011, the Veteran had maintained full-time employment at the U.S. Postal Service. See SSA Disability Report; SSA Earnings Report submitted in June 2014 by the Veteran's attorney. Information from the U.S. Census Bureau indicates that the poverty rate for the years from 2003 through 2011, for one person was at most $11,484 (for 2011) and $11,137 (for 2010). The Veteran reported in his SSA Disability Report that he earned $1,828.00 bi-weekly at the U.S. Postal Service, and the Veteran reported in his February 2010 Form 21-8940 that he earned $4,285.00 per month. The Veteran's SSA Earnings Report shows that from 2003 to 2010, the Veteran's annual income was at least $35,225.82, and that he earned $5,890.96 in 2011. Thus, the Veteran's annual income was well above the poverty level during the entire appeal period. The Board acknowledges the Veteran's attorney's argument that the Veteran's income decreased in certain years during the appeal period because of the effects of his PTSD. See June 2015 attorney statement. Nevertheless, the Veteran's annual income during the appeal period was still well above the poverty rate for each respective year in which the Veteran's income decreased as compared to the previous year. See SSA Earnings Report. The Veteran's attorney also argues that the Veteran earned below the poverty level in 2011. See June 2015 attorney statement. This argument is without merit, as the Veteran became unemployed from January 16, 2011, and therefore his income of $5,890.96 was only for that period in 2011 prior to January 16. The Board also finds that the preponderance of the evidence is against a finding that the Veteran's employment with the U.S. Postal Service prior to January 16, 2011 was employment in a protected environment. The Veteran contends that because the U.S. Postal Service "accommodated his ongoing issues with co-workers, problems with management, absenteeism, and unscheduled breaks, and allowed him to work the overnight shift and limit his duties to custodial work requiring very limited contact with others," his work was in a protected environment. See June 2014 attorney statement (referencing July 2010 and January 2014 private vocational evaluations, in which a vocational rehabilitation specialist noted that the Veteran had taken excessive time off of work due to emotional problems and opined that the Veteran's employment was "sheltered employment."). The question of whether a service-connected disability or disabilities render a veteran unemployable, which includes the question of whether any employment held by the Veteran was in a protected environment, is a legal determination for adjudicators to make rather than a factual finding to be answered by health care professionals or vocational experts. See generally Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Here, the Board acknowledges that print-outs of the Veteran's work schedule dated from January 2005 to February 2011 note that the Veteran took multiple days a month of both scheduled and unscheduled leave from his work. See also June 2014 Board decision. The Board also notes that the January 2014 private vocational evaluation stated that the Veteran's interruptions in focus and absences from the U.S. Postal Service would not generally be tolerated in the competitive labor market and were tolerated by the U.S. Postal Service. The vocational expert stated that the Veteran's level of absence that would "rarely if ever be tolerated in the context of regular competitive employment. I myself...routinely testify that such a level of absence precludes competitive employment." The vocational expert opined that because the Veteran was allowed to remain employed with the U.S. Postal Service despite ongoing issues with co-workers, management, absenteeism and unscheduled breaks, his work at the U.S. Postal Service was work in a protected environment. See also July 2010 private employability evaluation (noting the Veteran's problems at work, to include frequent absenteeism, and opining that the Veteran's employment was protected given that he was not fired due to such behavior). However, the Board finds that the preponderance of the evidence is against a finding that the Veteran's "accommodations" at work rise to the level of a protected work environment. The fact that the Veteran was not actually fired during the period prior to January 16, 2011 does not by itself determine that the Veteran's work environment was protected. Significantly, the private vocational opinion that the Veteran's behavior and absenteeism was "tolerated" is not reconciled with the evidence of record that showed that the Veteran was recurrently disciplined or faced dismissal from his job due to his PTSD symptoms. For example, April 2007 private treatment records note that the Veteran reported becoming involved in fights at work and the Veteran reported multiple angry interchanges at work that almost resulted in his dismissal. See also June 2014 Board decision; April 2007 private treatment record (Veteran reported that he thinks that on three occasions he came close to being thrown out). On VA examination in May 2007, the Veteran reported problems with people at work, including difficulty getting along with supervisors, that he was reprimanded at work, and that he was suspended from work for one month because he was preparing to "beat up" a supervisor. See also June 2014 Board decision. See also June 2014 Board decision. In an October 2012 written statement, the Veteran reported that during his employment, he took unscheduled breaks in the locker room to collect himself two to three times per shift for years and was absent several days each month due to his service-connected disabilities. See also June 2014 Board decision. The Veteran stated that he would clock out early and go home without explanation or permission at least once per month. Id. Based on this evidence, the Board finds that it is reasonable to find that the Veteran's problems with people at work were in fact not tolerated by his employer, in that he would either be suspended from work, reprimanded, or would almost be dismissed due to his behavior. Further, it is apparent that many times the Veteran took breaks and took time off work to go home without permission. The Board finds that such a work environment in which the Veteran's behavior and absenteeism resulted in disciplinary action or near disciplinary action and a work environment in which the Veteran was not given express permission to clock out early and go home does not rise to the level of a protected work environment. On the other hand, examples of a protected work environment can include a family business, self-employment, or odd jobs. The Board finds that it is reasonable to find that such examples of work environments would generally allow for absenteeism and angry interpersonal interactions and would not result in disciplinary action, reprimand, and the actual or perceived threat of dismissal. Thus, it is reasonable to find that the nature of the Veteran's employment at the U.S. Postal Service is distinguishable from and not analogous to the protected work environment of a family business, self-employment, or odd jobs. For the above reasons, given that the Veteran's yearly income, to include in the year 2010 (when the Veteran earned the least amount during the relevant appeal period), was significantly greater than the poverty level, and given that the Veteran's employment with the U.S. Postal Service was not in a protected environment, the Board finds that the Veteran was engaged in substantially gainful employment prior to January 16, 2011, and such work was not marginal. See Moore v. Derwinski, 1 Vet. App. 356 (1991) (work that is more than marginal permits the individual to earn a "living wage"); see also M21-1 MR IV.ii.2.F.32.a. The Board acknowledges that prior to January 16, 2011, the Veteran's service-connected PTSD impacted his ability to work, and the June 2014 Board decision made findings to this effect. For example, in its June 2014 decision, the Board found that for the rating period on appeal from April 7, 2003 to January 16, 2011, the Veteran's PTSD was manifested by occupational impairment due to symptoms such as poor relationships with others, impaired impulse control with unprovoked irritability and periods of violence. Indeed, during the entire appeal period prior to January 16, 2011, the Veteran had problems with fights at work and angry interchanges at work, and the Veteran reported missing time from work due to his symptoms. See April 2007 private treatment records; May 2007 VA examination in May 2007; October 2012 Veteran's written statement; June 2010 and January 2014 private vocational evaluations (noting that the Veteran had taken excessive time off of work due to emotional problems); see also June 2014 Board decision. The Board also acknowledges the Veteran's attorney's argument that the Veteran's income decreased in certain years during the appeal period because of the effects of his PTSD. See June 2015 attorney statement. However, the assigned evaluation of 70 percent for the Veteran's PTSD during this period prior to January 16, 2011 is intended to reflect such occupational impairment. See 38 C.F.R. § 4.10; see also June 2014 Board decision (concluding that a 70 percent rating for PTSD for the appeal period prior to January 16, 2011 is warranted). The Board also acknowledges in a July 2010 private employability evaluation and in a January 2014 private employability evaluation, each rehabilitation counselor opined that the Veteran's service-connected disabilities rendered him unable to obtain and maintain a substantially gainful occupation at least dating back to April 7, 2003. However, again, the question of whether a service-connected disability or disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). For the above discussed reasons, the Board has found that that the Veteran was rendered unable to obtain and maintain a substantially gainful occupation due to his service-connected disability from January 16, 2011. On review, because the Veteran was able to maintain substantially gainful employment despite his PTSD symptoms prior to January 16, 2011, and given that such employment was not marginal and was not sheltered, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected PTSD prevented him from securing and maintaining a substantially gainful occupation prior to January 16, 2011. From January 16, 2011, because the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD, entitlement to a TDIU is warranted from January 16, 2011. 38 C.F.R. §§ 3.340, 3.341, 4.16. Because the date on which entitlement to TDIU arose is later than the date the claim was received (April 7, 2003), and because the law provides that the effective date for the grant of entitlement to TDIU must be the later of those dates, the earliest possible effective date for the grant of entitlement to TDIU is January 16, 2011. Accordingly, entitlement to an effective date earlier than January 16, 2011 for the grant of entitlement to TDIU is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply, and the claim for entitlement to an earlier effective date for the grant of entitlement to TDIU must be denied. ORDER Entitlement to an effective date earlier than January 16, 2011, for the grant of a TDIU, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs