Citation Nr: 1635400 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 12-30 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than April 17, 2009 for the award of a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Shelly A. Miller, Attorney ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to a TDIU on April 17, 2009. 2. The probative, competent evidence of record demonstrates that the Veteran's service-connected major depression with posttraumatic stress disorder (PTSD) rendered him unable to secure or follow a substantially gainful occupation from April 17, 2008 through April 16, 2009. CONCLUSION OF LAW The criteria for an effective date of April 17, 2008, but no earlier, for an award of TDIU on an extraschedular basis have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1(r), 3.400, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As the Board grants entitlement to a TDIU for the entire rating period on appeal, which constitutes a complete grant of the Veteran's claim, no discussion of VA's duties to notify and assist is necessary. Legal Criteria and Analysis With respect to the Veteran's claim, the Board first notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Here, the Veteran contends that an effective date earlier than April 17, 2009 is warranted for the award of a TDIU. He has requested an earlier effective date of August 1985, as he was last employed at that time. Generally, the effective date for an award of compensation based on an original claim is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). Concerning claims for increased disability compensation, such as a claim for entitlement to a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). Here, the Veteran filed a claim for entitlement to a TDIU on April 17, 2009. A March 2010 rating decision granted the Veteran entitlement to a TDIU, effective April 17, 2009. Accordingly, the rating period on appeal extends from April 17, 2008, one year prior to the date of receipt of the claim, to April 16, 2009. 38 C.F.R. § 3.400(o)(2) (2015). VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). The central inquiry in a TDIU claim is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2015). In making this determination, the following will be considered one disability: 1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a) (2015). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16(b). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. The Board first finds that the Veteran does not meet the schedular rating requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a) from April 17, 2008 to April 16, 2009. During this time, the Veteran was service-connected for the following disabilities: (1) Major depression with PTSD (50 percent); and (2) chest rash (noncompensable). The combined rating for service-connected disabilities was 50 percent. However, the Board must still consider whether the Veteran's service-connected disabilities precluded substantial and gainful employment during this period. In September 2015, VA's Director of Compensation Service opined that entitlement to a TDIU on an extraschedular basis was not warranted for the rating period on appeal. In doing so, the Director noted that the medical evidence relating to the Veteran's service-connected disabilities did not show that the Veteran was unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. However, this advisory opinion references medical examinations from June 1980 and September 1986 but not any subsequent medical or lay evidence, including that relating to the severity of the Veteran's psychiatric symptoms during the rating period on appeal. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30 (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Probative evidence of record tends to establish that the symptomatology of the Veteran's service-connected major depression with PTSD, which justified the grant of a TDIU from April 17, 2009, also existed during the rating period on appeal. Social Security Administration (SSA) records indicate that the Veteran has received disability benefits for a mental disorder since March 1987. At that time, the Veteran reported episodes of severe depression, suicidal tendencies, extreme anger, and an inability to work effectively with others. These symptoms have existed in the Veteran since that time. The Veteran underwent VA PTSD examination in May 2001, whereupon he was diagnosed with recurrent major depression, noncombat-related PTSD, and alcohol dependence. During examination, the Veteran reported the following: that he attended high school through the eleventh grade but did not obtain his GED; an ongoing history of severe depression, suicide attempts, and periods of hospitalization for psychiatric symptoms; memory and concentration problems; feelings of impatience and irritability; feared loss of control; persistent anxiety; chronic fatigue; sleep disturbances; a lack of interest in being with others; social isolation; loss of self-confidence; feelings of persecution; and the current use of medication to assist with managing his symptoms. Upon examination, the Veteran appeared anxious, withdrawn, and fearful, and presented with a moderate suicidal risk. These symptoms were further noted during the Veteran's May 2009 VA PTSD examination, whereupon he was diagnosed with noncombat-related PTSD with underlying depression and psychotic features. During examination, the Veteran reported the following: decreased sleep; fearful behavior; flashbacks; auditory hallucinations; social isolation; short-term memory impairment and frequent feelings of distraction; being reactive to unfamiliar noises; anxiety and fear; significantly depressed mood and guilt; current treatment with a psychiatric provider; and the current use of medication to assist with managing his symptoms. The Veteran further indicated that these symptoms had been persistent and chronic since his military discharge. Upon examination, the Veteran presented with a Global Assessment Functioning (GAF) score of 51. Accordingly, the VA examiner opined that there was a strong linkage between the Veteran's symptoms of depression and his unemployability, his overall psychosocial functioning, and his qualify of life. See Nieves-Rodriguez, 22 Vet. App. at 295. Taken in conjunction, the SSA records and VA examinations tend to establish that the Veteran's psychiatric symptoms, which justified the grant of a TDIU effective April 17, 2009, have been present in the Veteran since March 1987. This conclusion is further supported by several lay statements of record, including buddy statements dated June 1988, July 1988, and February 1994. The Veteran has also offered multiple lay statements regarding the chronicity of his psychiatric symptoms and their impact on his employability, including in June 1987. The Veteran confirmed the ongoing nature of his symptoms in an October 2009 statement, wherein he reported the following: panic attacks, particularly in crowds, which provoked delusions, hallucinations, and feelings of being unsafe; fear of strangers and the unknown; difficulty with authority figures; mistrust of others; mistrust in his own actions; a preference to be left alone; difficulty communicating with others; sleep impairment; depression; and frustration. A veteran is competent to report symptoms observed through the use of his senses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). The Veteran's statements are additionally corroborated by the evidence of record, including an October 2009 statement from the Veteran's wife, who reported that the Veteran: was unable to take orders from others; believed others were trying to kill him; suffered from panic attacks; did not maintain relationships with his family; experienced fear of going out; experienced anger and extreme mood swings; and experienced sleep disturbances. Id. Accordingly, the Board finds the Veteran to be a competent and credible historian regarding the chronicity and severity of his psychiatric symptoms. As such, the Board finds that the evidence of record tends to demonstrate that the Veteran's psychiatric symptoms which justified the grant of a TDIU from April 17, 2009, were also present during the rating period on appeal. Although the claims file does not contain evidence speaking directly to the Veteran's symptoms during this exact period of time, evidence available both before and after this period indicate that the Veteran's symptoms are chronic and severe. Therefore, the Board finds that the evidence is at least in relative equipoise that the Veteran's psychiatric symptoms, which justified the grant of a TDIU from April 17, 2009, also existed during the rating period on appeal. Thus in light of the Veteran's service-connected disabilities, eleventh grade education, and occupational experience, the Board finds that a TDIU is warranted for the period of April 17, 2008 through April 16, 2009. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied). ORDER The criteria for an effective date of April 17, 2008, but no earlier, for the award of TDIU on an extraschedular basis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs