Citation Nr: 1752318 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-00 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an effective date prior to November 15, 2006 for the award of service connection for post-traumatic stress disorder (PTSD) and entitlement to an increased disability rating for PTSD. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1969 to November 1970, including service in Vietnam. His awards and decorations include the Vietnam Service Medal, Vietnam Campaign Medal, National Defense Service Medal, and Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. By way of background, in July 2015, the Board denied an award of TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court issued a Memorandum Decision vacating the July 2015 Board decision and remanding the Veteran's claim. The matter has since been returned to the Board for appellate review. In July 2017, the Veteran's representative raised a jurisdictional issue of entitlement to a disability rating of at least 70 percent from November 15, 2006 for the Veteran's service-connected psychiatric disorder. In that regard, the RO granted entitlement to service connection for PTSD in an October 2011 rating decision and assigned a noncompensable rating, effective November 15, 2006, and a 30 percent rating, effective August 18, 2011. In an October 2011 statement, the Veteran requested that the RO reconsider the effective date of the award and stated that his "disability could be increased." The RO deferred "the claim for an increased evaluation for Post Traumatic Stress Disorder (to include entitlement to an earlier effective date)" in an April 2012 rating decision. In October 2012, the RO subsequently granted an increased disability rating for PTSD at 70 percent, effective November 4, 2011. The Board agrees with the Veteran's representative that, liberally construed, the Veteran's October 2011 statement constituted a timely Notice of Disagreement (NOD) with the October 2011 rating decision. The record currently available to the Board; however, contains no indication that the Veteran has been issued a Statement of the Case (SOC), addressing the issues of entitlement to an effective date prior to November 15, 2006 for the award of service connection for PTSD and entitlement to an initial, compensable rating for PTSD. Under these circumstances, a remand for this action is necessary. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. The issues of issues of entitlement to an effective date prior to November 15, 2006 for the award of service connection for PTSD and entitlement to an initial, compensable rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran meets the schedular criteria for TDIU. 2. The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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 central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration shall be given to the Veteran's level of education, special training, and previous work experience. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Initially, the Board finds that the Veteran meets the schedular requirement for the award of a TDIU as he is service-connected for anxiety disorder (previously rated as PTSD), rated as 70 percent disabling from November 4, 2011, 30 percent disabling from August 18, 2011, and noncompensable from November 15, 2006; actinic keratosis, rated as 10 percent disabling from November 15, 2006; and tinnitus, rated as 10 percent disabling from September 6, 2011. The Veteran reported on his November 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, that his service-connected disabilities prevented him from securing or following any substantial gainful occupation. From 1976 to February 2006, he predominantly worked full-time as a factory worker for General Electric. See also March 2017 Veteran's Affidavit; March 2017 Social Security Statement. At a VA audiological examination in February 2012, the Veteran reported that his service-connected tinnitus impacted ordinary conditions of daily life because it was "really annoying when it was quiet." Later, in December 2012, the Veteran similarly reported that the ringing in his ears was worse when everything was quiet and that it caused problems understanding what people said. However, a VA audiologist concluded that tinnitus was rarely disabling to the point that the Veteran could not work in any capacity. Without regard to the Veteran's age, the VA audiologist opined that the Veteran's service-connected tinnitus would not impact his ability to perform all types of physical or sedentary jobs to the degree as to render him unemployable. With regard to the Veteran's service-connected anxiety disorder (or PTSD), a May 2012 VA PTSD examination report documented that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was unable to use problem solving in unforeseen situations, work with peers/isolating, and accept supervision or correction from superiors. The VA examiner concluded that the Veteran's social avoidance, tendency to isolate, anxious and depressed moods, panic, low frustration tolerance, and sleep impairment created moderate to severe impairment in his occupational functioning. A November 2012 VA PTSD examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner further commented that the Veteran was active with civic organizations, including his church, the DAV Honor Guard, and the Special Olympics. The examiner stated that the Veteran's involvement with these organizations implied an ability to get along with others in a friendly and cooperative manner most of the time. The Veteran was able to arrive on time for events, communicate with others in an effective manner, and take pleasure out of the services that he provides. The examiner concluded that the Veteran's anxiety would have a mild effect on his ability to perform in either physical or sedentary employment settings due to occasional depressed mood, fatigue, and irritability. The examiner noted that although the Veteran was currently rated at a level indicating deficiencies in most areas, current results indicated that the Veteran functioned with only occasional decrease in work efficiency and rare periods of inability to perform occupational tasks. The examiner distinguished the June 2012 VA examination findings as inconsistent with November 2012 findings due to the June 2012 report being based on an almost exclusively face-valid self-report instrument. In a February 2013 VA addendum opinion to the May and November 2012 PTSD examination reports, the VA examiners incorporated the findings as described above and noted that the Veteran's PTSD symptoms clearly and significantly improved from May to June 2012, as shown by a change in diagnosis from PTSD to anxiety disorder. The examiners found that the Veteran's participation in civic organizations required the Veteran to be reliable, communicate effectively, be sensitive to others needs, and have his personal needs met to a degree that he was able to focus on the task at hand. The examiners concluded there were no indicators present that would warrant impairment in the moderate or severe range as indicated in May 2012. A December 2014 VA examination report for mental disorders documented that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that since the last 2012 VA examination, the Veteran had shown the ability to maintain steady functioning in many domains including social functioning and employment. While veteran was not currently employed, he was active in volunteering, active in his church, and assisted in caring for his parents and stepson. The Veteran had noted that many of his symptoms were manageable and controlled through his own adaptive coping skills. Thus, the examiner concluded that the Veteran's level of impairment was currently mild with limited impairment. In a June 2017 clinical interview, the Veteran's private psychologist evaluated the severity and functional limitations of the Veteran's psychiatric condition since November 2006. The private psychologist noted that the Veteran recently submitted a statement that described his difficulty while employed. The Veteran recalled feeling nervous, on-edge, and hypervigilant at work, despite knowing it was a safe place. He disclosed getting into altercation with coworkers because of his temper. The private psychologist indicated that securing and then maintaining gainful employment required certain cognitive, social/emotional, and physical abilities. Based on the available evidence and the Veteran's self-report, the private psychologist opined that it was at least as likely as not that, with the Veteran's current level of functioning, the Veteran would not be able to secure and follow substantially gainful employment and had not been able to do so since 2006. As follows, the private psychologist stated that there was evidence that the Veteran's symptoms caused occupational impairment (i.e. written reprimand for performance, conflict with coworkers) when employed and, since then, his symptoms had worsened. Specifically, the private psychologist pointed to the Veteran's current symptoms in impairing his ability to understand and carry out directions, make decisions, exercise judgment, learn new tasks, adapt to a changing work environment, screen out environmental stimuli, and process information. The Veteran was socially impaired in his ability to initiate interpersonal contact, respond appropriately to negative feedback, adapt to new coworkers/supervisors, and maintain relationships with coworkers/supervisors. Physically, the Veteran lacked the ability to maintain a fixed work schedule, work pace, and stamina over the course of both a workday and a work week. Although the Veteran had attained some career advancement over the course of 30 years with General Electric, the private psychologist emphasized that the Veteran had a 12th grade education and would be competing for semi-skilled labor positions. The private psychologist noted that type of employment (i.e. competitive, production-based, and structured) would serve to both highlight and aggravate the Veteran's functional limitations. With respect to previous evaluations, the private psychologist concluded that the Veteran's participation in volunteer activities and his ability to care for his stepson were not '"work-like"' activities and were different in significant ways from maintaining gainful employment. In particular, the private psychologist stated that the Veteran was able to control when, where, how long, and how frequently he volunteered. Further, the Veteran's performance during volunteer activities was not evaluated, nor was he expected to maintain stamina, pace, and productivity in a competitive work environment. Finally, with respect to the Veteran's service-connected actinic keratosis, a VA examiner indicated, in December 2012, that the Veteran's skin condition did not impact his ability to work. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107(b). Here, the Board finds the June 2017 private psychological evaluation findings as well as the Veteran's lay statements of record, and the resultant impact on his ability to secure or follow substantially gainful employment, permit application of section 5107(b). In other words, the evidence both for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU are met. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Entitlement to TDIU is granted, effective November 4, 2011, subject to the law and regulations governing the award of monetary benefits. REMAND As previously noted, the Veteran submitted a timely NOD with the October 2011 rating decision that granted entitlement to service connection for PTSD and assigned a noncompensable rating, effective November 15, 2006, and a 30 percent rating, effective August 18, 2011. However, a SOC as to this matter has not been issued. Thus, the Board must remand the matter for issuance of a SOC. Manlincon, supra. The Board also defers consideration of the award of TDIU prior to November 4, 2011, until the requested development below has been completed. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: The AOJ should issue an SOC addressing the issues of entitlement to an effective date prior to November 15, 2006 for the award of service connection for PTSD and entitlement to an initial, compensable rating for PTSD. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the statement of the case unless he perfects his appeal. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs