Citation Nr: 1752723 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-01 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 11, 2017. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran had a videoconference hearing before the Board in September 2014. A transcript has been associated with the Veteran's claims file. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran was unable to secure or maintain gainful employment as a result of service-connected disabilities prior to May 11, 2017. CONCLUSION OF LAW There is no legal entitlement to an effective date, prior to May 11, 2017, for the grant of a TDIU. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Criteria A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2015). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100 percent and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Importantly, 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"). 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 to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extra-schedular consideration. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The appeal of the assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. §4.16(b). On April 16, 2010, the Veteran submitted a VA Form 21-8940, alleging that he was unemployable due to his service-connected posttraumatic stress disorder (PTSD), hearing loss, and tinnitus. He stated that he last worked in November 2009. The Veteran wrote that he was a new car salesperson from November 1971 to November 2009. He indicated that he completed high school. On May 3, 2011, the Veteran submitted another VA Form 21-8940, alleging that he missed three weeks of work each year due to his disability. He reported that he had completed one year of college. The RO issued a July 2017 rating decision, which granted entitlement to a TDIU, effective May 11, 2017. The period the Veteran is being considered for TDIU is from November 2009(when he last worked) to May 2017. Prior to May 11, 2017, the Veteran's service-connected disabilities included PTSD assigned a 50 percent rating, diabetes mellitus type II assigned a 20 percent rating, tinnitus assigned a 10 percent rating, hearing loss left ear assigned 0 percent rating, and erectile dysfunction associated with PTSD with unspecified depressive disorder and alcohol use disorder assigned 0 percent rating, with a combined disability rating of 60 percent disabling from March 14, 2006. The Veteran did not meet the percentage criteria for TDIU consideration under 38 C.F.R. § 4.16(a) until May 11, 2017. Thus, the Board must consider whether a TDIU is warranted under 38 C.F.R. § 4.16 (b) for the period prior to that date. On an April 2010 VA hearing examination report, the examiner opined that the Veteran may have some difficulty to follow verbal instructions in noise environments. She commented that if he had to use hearing protections and/or could not use his hearing aids it would be difficult for him to hear. She further noted that in optimal listening conditions he should be able to perform physical and sedentary activities in employment. The December 2013 VA examiner for PTSD opined that the Veteran's PTSD symptoms caused an occupational and social impairment with reduced reliability and productivity. However, the examiner noted that the occupational and social impairment was likely not related to the Veteran's PTSD. The Veteran reported that he had not worked in four years. He indicated that he was fired as a sales manager for a car dealership. He further explained that the dealership was "cutting back" when the car market went down. The examiner indicated that his PTSD symptoms included anxiety, depressed mood, chronic sleep impairment, suspiciousness, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. In September 2014, the Veteran testified that he was not motivated to do anything. He stated that he could not get a job because of the lack of his motivation. In a March 2016 VA Memorandum, the Director Compensation Service, opined that the evidence of record did not demonstrate that the Veteran was unemployable. The Director noted that no medical evidence of record demonstrated that he had been frequently hospitalized due to his PTSD or that he had marked interference with employment. The VA PTSD examination dated December 20, 2013, confirmed that the Veteran had not worked since 2009 and provided that the Veteran stated that he was fired from his Sales Manager position because "they were cutting back when the car market went south." No further evidence was of file that indicated whether or not the Veteran was unable to obtain and maintain gainful employment due to his service-connected disability(ies). He further commented that the evidence of record did not demonstrate that the Veteran's service-connected conditions had caused an exceptional disability picture such as marked interference with employment nor frequent episodes of hospitalization. Therefore, the request for consideration of IU on an extra-schedular basis was denied. The May 2016 VA PTSD examiner opined that the Veteran's PTSD symptoms had an 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 indicated that after the military the Veteran worked at an electrical company for two months. After working at the electrical company, the Veteran worked at a car dealership for 33 years. The examiner indicated that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work. The May 2016 VA diabetes mellitus examination revealed that the Veteran's diabetes mellitus was controlled by a restricted diet and oral hypoglycemic. The examiner indicated that there were no complications of his diabetes mellitus. The examiner opined that the Veteran's diabetes did not impact his ability to work. Additionally, in a May 2017 VA Memorandum, the Director of Compensation Service, concluded that the evidence did not support a finding that the Veteran's service-connected disabilities, either individually or in combination with each other, rendered the Veteran unemployable. The Director reviewed the evidence of record, which included: July 2009 to May 2011 VA treatments from his individual and group therapy; the Veteran's hospitalized treatment for a seven week PTSD program; January 2007 VA examination; January 2009 VA examination; May 2010 VA examination; December 2013 VA examination and May 2016 VA examination. The Director noted that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. After review, of the records the Director found that the Veteran was not entitled to a TDIU for his service-connected disabilities. The May 2017 VA kidney conditions examiner opined that the Veteran's kidney condition would limit the Veteran from lifting and exercising. The May 2017 VA diabetes sensory-motor peripheral neuropathy conditions examiner indicated that the Veteran had diabetic bilateral upper and lower peripheral neuropathy. He indicated that the Veteran had moderate lower extremity diabetic peripheral neuropathy. The examiner opined that the Veteran's diabetic peripheral neuropathy did not impact his ability to work. In a July 2017 VA Memorandum, the Director of Compensation Service, concluded that the evidence did not support a finding that the Veteran's service-connected disabilities prevented him for all types of gainful employment. The Director noted that the Veteran attended a 6 to 7 week inpatient treatment program for his PTSD. The Veteran was not admitted due to an acute exacerbation of his PTSD. The Veteran attended a voluntary treatment program for Veteran's diagnosed PTSD. The Director, found that the medical records did not support any functional restrictions due to PTSD, diabetes, tinnitus, hearing loss, or erectile dysfunction disorder. On a July 2017, rating decision the RO granted service connection for left upper extremity peripheral neuropathy assigned a 20 percent rating effective May 11, 2017, left lower extremity peripheral neuropathy assigned a 20 percent rating effective May 11, 2017 , right upper extremity peripheral neuropathy assigned a 20 percent rating effective May 11, 2017, and right lower extremity peripheral neuropathy assigned a 20 percent rating effective May 11, 2017. As of May 11, 2017 the Veteran had a combined rating of 90 percent. Based on the lay and medical evidence presented, the Board finds that the preponderance of the evidence is against the claim for a total disability evaluation based on individual unemployability due to service connected disorders prior to May 11, 2017. To that end, although the Veteran claims that his service connected PTSD, tinnitus and hearing loss rendered him unemployable. The objective evidence of record discloses that while limited in his ability to work due to his PTSD symptoms and hearing loss may; however, he would be able to maintain employment. The April 2010 VA hearing examiner noted that it would be difficulty for the Veteran to hear in noise environments, with hearing protections on, or without his hearing aids. On the other hand, she further commented that the in an optimal listening condition he would be able to perform physical and sedentary activities in employment. Additionally, throughout all the VA PTSD examinations the examiners never indicated that the Veteran's symptoms demonstrated a total occupational and social impairment on his ability to sustain gainful employment. At most, the Veteran's PTSD symptoms impacted him on a level of an 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. Notably, the December 2013 VA PTSD examiner commented that the Veteran's occupational and social impairment was not likely due to his PTSD. Based on the foregoing, the Board finds that the greater weight of probative evidence is against assigning an effective date for TDIU earlier than May 11, 2017. The evidence of record establishes that prior to May 11, 2017, at best, the Veteran's service-connected disabilities may have contributed to his unemployment. There is no persuasive evidence of record, however, suggesting that the Veteran's service-connected disabilities alone prevented him from obtaining or maintaining gainful employment prior to May 17, 2017. Indeed, as noted, there is significant evidence of record to the contrary. ORDER Entitlement to a total disability rating based on individual unemployability due to service- connected disability (TDIU) prior to May 11, 2017 is denied ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs