Citation Nr: 1751270 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-30 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an effective date earlier than December 31, 2009, for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran served in the United States Army from March 1968 to March 1970, including service in the Republic of Vietnam. His decorations include the Combat Infantryman's Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2012, a joint motion for partial remand was filed in the United States Court of Appeal for Veterans Claims (CAVC) as applied to the Veteran's claim of entitlement to an intial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to February 2008. This matter was remanded by the Board in July 2016 for further development of the evidence. That has been accomplished, and the case has been returned for further appellate consideration. FINDINGS OF FACT 1. Since April 17, 2006, the Veteran has been service connected for PTSD, rated as 70 percent disabling; thus, even without consideration of his other service-connected disabilities, the Veteran has met the schedular requirements for entitlement to a TDIU as of that date. 2. The Veteran completed high school and previously was self-employed at an excavation company. He last worked when he closed his business on December 31, 2009. 3. Resolving all doubt in his favor, the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected PTSD since April 17, 2006. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met from April 17, 2006. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Regarding the issue of entitlement to a TDIU from April 17, 2006, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the Veteran, given the Board's favorable decision. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). II. Legal Criteria A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (o). A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are 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 (a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). With regard to the proper effective date for an award of a TDIU, a request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1),(2); VAOPGCPREC 12- 98 (1998). In addition, any communication or action indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107. III. Analysis The Veteran contends that he is entitled to an effective date prior to December 31, 2009 for the award of TDIU. Specifically, he contends that he is entitled to an effective date of April 17, 2006 - the date upon which it was factually ascertainable that an increase in the Veteran's PTSD disability occurred, the date that the Veteran met the schedular requirement for a TDIU, and the date that the evidence showed he was unable to secure or follow a substantially gainful occupation. By way of background, the Veteran is service connected for PTSD, at 70 percent disabling as of April 17, 2006; for a pleural cavity injury, at 30 percent disabling as of April 17, 2006; and for a scar and bilateral hearing loss; both rated at 0 percent disabling. The combined disability rating as of April 17, 2006 is 80 percent. In September 2006, the Veteran underwent a VA examination for his PTSD. The Veteran reported that he had been fired from his previous jobs due to his temper and angry outbursts. He also indicated that in the past 10 to 12 years, he had experienced increased irritability and his oversensitivity had worsened. The Veteran stated that he was self-employed and had been in business for the last 11 years. The Veteran reported that he had disturbances in his level of concentration and episodes of agitation with his customers, both of which affected his ability to effectively manage his business. The examiner also noted that due to the Veteran's PTSD, he had a decreased interest in activity such as his business, had a consistently depressed mood, felt isolated, had anger problems, and had difficulty conversing and interacting with others. See September 2006 examination report. In February 2008, the Veteran underwent a VA examination for his pleural cavity injury, for which he is also service connected. In that examination report, the examiner stated that the Veteran could not do physical work, due to severe muscle spasms. As a result, he delegated work to others due to the strenuous nature of his job. The examiner also reported that the Veteran had increased absenteeism, four weeks of work, due to his service-connected PTSD. See February 2008 examination report. In October 2008, the Veteran filed a claim for an increased rating in excess of 30 percent for his service-connected PTSD with depression. In April 2011, the Veteran filed a claim for TDIU, indicating that he had been unemployed due to his PTSD since December 2009. See May 2011 Application for Increased Compensation Based on Unemployability, VA Form 21-8940. In a December 2012 rating decision, entitlement to a TDIU was granted, effective April 5, 2011. An initial rating of 70 percent for PTSD was subsequently granted, effective April 17, 2006 and the Veteran's TDIU was granted from December 31, 2009. The Veteran met the schedular criteria for a TDIU as of April 17, 2006. In October 2009, the Veteran underwent another VA examination for PTSD. The Veteran reported feeling depressed and mentioned that "I'm just losing it, I don't have that drive no more." In regard to his small business, he reported that "now I'm sitting on my rusty butt and don't want to go to work." He also said that "he gets the jobs and agrees to the work but doesn't show up when it is time to follow through" and that he had lost several customers, as a result. He subsequently discussed how he would sleep 2-3 hours a night, walking around the yard a lot at night. The examiner reported that, as a result of the PTSD, the Veteran had a sleep impairment and was not productive when he had not slept well. The examiner also reported that the Veteran had increased absenteeism, twelve weeks of work, due to not wanting to be around people. See October 2009 examination report. In a February 2010 statement, the Veteran explained that he was forced out of business due to his PTSD. He stated that he began to see changes in or about 2007 when he became angry and hostile to customers and exhibited signs of absenteeism, poor concentration, and a lack of memory. He also stated that his "business was going to crap because of attitude, concentration, and lack of interest." The Veteran was evaluated by a private psychiatrist in May 2016. In the detailed report, submitted along with the Veteran's appellate brief, the examiner provided a thorough conclusion. The examiner stated that the Veteran completely lost the capacity to manage his work responsibilities and was unable to follow through with the commitments of his construction/excavation company, leaving his wife to take over many of the logistics of the business. The examiner also opined that while he found the Veteran 100% disabled since at least December 2009, in reality, the Veteran was severely disabled by the time he sought treatment in 2006 when his deterioration began. See May 2016 examination report. In June 2017, the Veteran underwent a VA examination, following the Board's request for an examiner to provide an opinion of the Veteran's functional impact prior to December 2009. The examiner noted that his service-connected scar would not have had significant functional impact. The examiner also reported that the service-connected pleural cavity injury would have made the Veteran less likely to perform jobs requiring heavy lifting with strenuous physical exertion, and that he would be required to take interruptions and breaks at work during severe flare-ups. The examiner could not determine the frequency and extent of the interruptions without speculation. The examiner also could not state whether the spasms or cramps would preclude even sedentary employment. See June 2017 examination report. An audiologist reported that prior to December 31, 2009, the extent of the Veteran's service-connected bilateral hearing loss was considered adequate for communication purposes in situations where good communication strategies were used and that hearing loss in isolation would not preclude gainful employment. See June 2017 examination report. The Veteran was afforded a VA examination for his PTSD in June 2017, also following the Board's request for an opinion of the Veteran's functional impact prior to December 2009. In the examination report, the examiner stated that the Veteran reported that he lost customers because he had difficulty in keeping his schedule, difficulty with depression and panic episodes, difficulty remembering things, and difficulty in dealing with customers. The Veteran also reported that he lost everything in 2006, even though business was good. The examiner concluded that it appeared that the Veteran began to have more issues related to his PTSD in 2006 and that the issues escalated until he finally gave up his business in 2009. See July 2017 examination report. In order to meet the schedular requirements for a TDIU, a claimant must have either one service-connected disability, rated at 60 percent or more, or two or more disabilities, where at least one rated at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran has been service connected for PTSD, rated as 70 percent disabling; thus, even without consideration of his other service-connected disabilities - including that of a pleural cavity injury, abdominal wall scar, and bilateral hearing loss - the Veteran has met the schedular requirements for entitlement to a TDIU. The disabilities met the schedular requirements for individual unemployability as of April 17, 2006. Therefore, the only remaining question is whether the service-connected disabilities precluded the Veteran from following substantially gainful employment. In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). Marginal employment is not substantially gainful employment. 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, as the poverty threshold for one person. Marginal employment may also be held to exist on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16 (a). The RO assigned an effective date for the grant of individual unemployability as of December 31, 2009, the date in which it was determined that the Veteran's service-connected disabilities precluded him from following substantially gainful employment. However, the Board finds that the RO did not adequately consider all of the pertinent evidence of unemployability prior to December 31, 2009. Upon a thorough review of the evidence of record, the Board finds that there is competent and credible evidence that the Veteran was unable to gain and maintain substantially gainful employment as early as 2006, solely due to his service-connected PTSD. Furthermore, while the Veteran reported that he was self-employed at his construction business at the September 2006 examination, he also expressed that he had disturbances in his level of concentration and episodes of agitation with his customers, both of which affected his ability to effectively manage his business, along with a decreased interest in his business and customers. With respect to education, the evidence shows that the Veteran's highest level of education is the 12th grade. With respect to employment history, the evidence contains his reports of previous positions, including that of a mechanic. The Veteran contends that he was self-employed and ran an excavation business until December 2009. He also contends that by nature, his employment was in a protected environment as he was only able to maintain the position as his own boss by delegating his business-level responsibilities to his wife. Specifically, the Veteran asserts that although his earned annual income exceeded the poverty level, he would not have been able to run the business or earn more than a marginal income had his family not helped with managing tasks requiring concentration or interpersonal interaction, as he was not occupationally functional on his own. Here, the evidence shows that the Veteran sold his business in December 2009. Several of the examination reports, including that of the private psychiatrist, note that the Veteran began to have more issues related to his PTSD in 2006 and that the issues escalated until he finally gave up his business in 2009. Several of the reports also note that the Veteran delegated responsibilities of his day-to-day business affairs to family. Thus, it is reasonable to infer that the Veteran had to sell his business, due to, at least in part, his PTSD. Moreover, the evidence of record prior to December 31, 2009 shows that the Veteran was irritable with depression and panic attacks, had nightmares and sleep impairment which caused him daily fatigue, and daily intrusive thoughts. Upon selling his business, the Veteran never returned to work. Upon evaluating the medical evidence, the Board finds that the Veteran worked in a protected environment, amounting to marginal employment, as he routinely failed to show up to work, failed to provide services to his customers, and delegated most of his responsibilities to his wife. Along with the Veteran working in a protected environment, when the Veteran's symptoms are considered, along with his need to sell his business in December 2009 due to worsening PTSD symptoms, the Board finds that this resulted in unemployability. Thus, there is evidence of unemployability prior to December 31, 2009. While it is not entirely clear as to what point after the date of claim the Veteran became unemployable, the record suggests that the Veteran became unemployable at some point after April 17, 2006 but prior to December 31, 2009. Accordingly, the Board must resolve all doubt and find that the Veteran was unemployable as of April 17, 2006 -- the date upon which it was factually ascertainable that an increase in the Veteran's PTSD disability occurred, the date that the Veteran met the schedular requirement for a TDIU, and the date that the evidence showed he was unable to secure or follow a substantially gainful occupation. ORDER An effective date of April 17, 2006, and no earlier, is granted for the assignment of a TDIU. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs