Citation Nr: 18140662 Decision Date: 10/05/18 Archive Date: 10/04/18 DOCKET NO. 15-19 342 DATE: ORDER 1. An earlier effective date of August 28, 2006, is granted for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), subject to the regulations governing payment of monetary awards. REMANDED 2. The appeal seeking to establish J.T.B. as a helpless child of the Veteran is remanded. FINDINGS OF FACT 1. On August 28, 2006, VA received the Veteran’s claim for a higher rating for posttraumatic stress disorder (PTSD), which is also deemed to be a claim for a TDIU rating. 2. An April 2015 rating decision granted a TDIU rating effective February 18, 2015. 3. It is reasonably shown that throughout prior to February 18, 2015, from August 28, 2006, the Veteran’s service-connected disabilities [PTSD, rated 70 percent; left shoulder, 30 percent; tinnitus, 10 percent; and right leg and chest scars, 0 percent, each; and rated 80 percent combined] were of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating were met throughout from August 28, 2006, and a TDIU rating is warranted throughout from that date. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from February 1966 to February 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision. An interim (April 2015) rating decision granted a TDIU rating effective February 18, 2015. In a May 2015 VA Form 9 (substantive appeal), the Veteran limited this appeal to the matter of entitlement to an earlier effective date for the award of a TDIU rating. 1. An (earlier) effective date of August 28, 2006, is granted for the award of a TDIU rating. Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise the date the claim was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and work experience, but not age or impairment due to nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background A November 2005 SOC continued the 50 percent rating assigned for the Veteran’s PTSD and increased the rating assigned for his left shoulder disability from 20 to 30 percent. He did not submit a formal appeal. On August 28, 2006, VA received the Veteran’s claim for an increased rating for his PTSD. He also submitted a July 5, 2006 medical statement from Dr. T.S., a VA psychiatrist, who reported that he has treated the Veteran since April 2003 for chronic, severe PTSD and Major Depressive Disorder (MDD). He wrote, “It is my professional opinion that [the Veteran] will continue to be impaired, making him permanently disabled and totally unemployable. It is recommended that [he] should be medically retired with 100% service connected benefits, permanently and totally, and to maintain intensive mental health services.” A December 2008 rating decision increased the rating for PTSD to 70 percent, effective August 28, 2006, and deferred a decision on a TDIU rating (pending the Veteran’s submission of VA Form 21-8940). A July 2009 rating decision denied a TDIU rating, as the Veteran had not submitted a VA Form 21-8940. Since then, the Veteran has submitted several medical statements in support of his appeal seeking an earlier effective date for a TDIU rating. A November 2008 statement from M.K., a psychologist and VA PTSD Program Coordinator, notes that she has treated the Veteran since September 2003. She wrote, “I believe [the Veteran] should be receiving 100% SC. In my clinical opinion [he] is permanently and totally disabled and has been for some time…He has not been capable of holding gainful employment…” In a November 2008 statement, Dr. T.S. wrote, “It is my professional opinion that [the Veteran] has no capacity to obtain and maintain any gainful employment due to his serious mental disabilities, and was recommended that he be medically retired with 100% permanently disabled and totally unemployable status.” In a May 2010 VA Form 21-8940, the Veteran reported that he last worked, as a postal supervisor, in 2001 and that he has two years of college education and no other education/training. In a December 2013 statement, the Veteran’s private treating psychologist, Dr. M.G., reported that he has treated the Veteran for over 15 years, and stated “It is my opinion based on my many years of treating [the Veteran] that there is essentially no type of work that he could successfully maintain.” In a January 2015 statement, Dr. T.S. wrote, “It is my professional opinion that [the Veteran] has no capacity to obtain or maintain any gainful employment due to his serious mental disabilities, and [it is] thus recommended that he be medically retired with 100% permanently disabled and totally unemployable status.” On February 2015 VA (fee basis) PTSD examination, the Veteran reported that he last worked in 2001 as a supervisor for the U.S. Post Office. Following interview and examination of the Veteran, the examiner wrote, “After review of records and collateral letters from treating providers, it is likely that this veteran is totally unemployable…I am of the opinion that there is virtually no job that he would be able to safely and effectively perform.” Analysis On August 28, 2006, VA received the Veteran’s claim for an increased rating for his PTSD. A TDIU claim is part and parcel of an increased rating claim when raised by the record or by the Veteran in connection with an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has raised entitlement to a TDIU rating multiple times throughout the appeal period. From August 28, 2006, the Veteran’s service-connected disabilities have included: PTSD (rated 70 percent), left shoulder (30 percent), tinnitus (10 percent), and right leg and chest scars (0 percent, each); the combined rating is 80 percent; the schedular rating requirements for a TDIU rating were met throughout. The analysis proceeds to considering whether the Veteran’s service-connected disabilities were of such nature and severity as to preclude his participation in substantially gainful employment consistent with his education and work experience. Competent medical evidence indicates that throughout since August 28, 2006, the Veteran has been unemployable due to his service-connected PTSD. As noted above, VA psychologists and psychiatrists (Drs. T.S. and M.K.) who have treated the Veteran since 2003 have consistently opined that the Veteran was not capable of maintaining employment. The Board has no reason to question the competence of the Veteran’s VA treatment-providers (or the opinions they offer). Furthermore, his private treating (for over 15 years) psychologist has opined “there is essentially no type of work that [the Veteran] could successfully maintain.” And most recently a VA fee basis examiner has opined that “there is virtually no job that he would be able to safely and effectively perform.” In summary, the competent (medical) evidence of record reasonably reflects that throughout since August 28, 2006, due to his service-connected disabilities, the Veteran has been precluded from participating in any regular substantially gainful employment consistent with his education and occupational experience. A TDIU rating is warranted from August 28, 2006. See 38 C.F.R. § 4.3. REASONS FOR REMAND 2. The appeal seeking to establish J.T.B. as a helpless child of the Veteran is remanded. The Veteran seeks entitlement to recognition of J.T.B. as a helpless child of the Veteran (based on permanent incapacity for self-support shown prior to age 18). The Board finds that further development is needed for VA to fulfill its duties mandated under the VCAA. A July 2009 rating decision denied the Veteran’s claim for helpless child benefits for J.T.B. In May 2010, the Veteran filed a Notice of Disagreement (NOD) with that decision. The AOJ included this issue in an August 2015 Supplemental SOC (SSOC), but has not issued an SOC in the matter. Under 38 C.F.R. § 19.26(d) an SOC must be issued in response to a timely/appropriate NOD (unless the matter is otherwise resolved). Under 38 C.F.R. § 19.31 an SSOC may not be used to respond to a NOD on a newly appealed issue that were not addressed in a prior SOC. Accordingly, the Board is required to remand this issue for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). [This matter is not now fully before the Board, and will be so only if the Veteran timely files a substantive appeal after a SOC is issued.] A review of the record also found that additional pertinent records remain outstanding. In a May 2009 statement, the Veteran reported that J.T.B. received diagnoses of ADHD and Tourette syndrome at age 4 from Kaiser Permanente. He stated that he was “including some of his records from Kaiser Permanente…from 1993 to 2008.” A review of the records submitted found records from age 7 to 13 (1993 to 2001) and a single record from age 20 (2008). Records of treatment from ages 13 to 18 (2001 to April 2006) are evidence pertinent in this matter, and must be obtained/submitted on remand. Additionally, the record contains a September 2015 letter from the Social Security Administration (SSA) which reflects that J.T.B. has been in receipt of SSA disability benefits for anxiety and mood disorders with an onset date of November 25, 2008. That disability determination report, and any medical records associated with (and leading up to) that determination should also be obtained. The matter is REMANDED for the following: 1. Ask the Veteran to provide identifying information, and if needed authorizations for VA to obtain, regarding all additional evidence pertinent to the “helpless child” claim (for J.T.B.) that is not currently in the record. Specifically ask him to submit (or authorize VA to obtain): (a) complete records of the J.T.B.’s psychiatric treatment at Kaiser Permanente prior to the age of 18 (i.e., prior to May 2006); (b) SSA records pertaining to their determination awarding J.T.B. disability benefits, including all medical records considered in conjunction with (and leading up to) that determination; (c) any additional, contemporaneous private records of J.T.B.’s treatment from age 13 through 2006. All attempts to obtain any records sought, and not received, must be documented. 2. Then review the record and arrange for any further development suggested by the results of the development sought above (to include, if suggested, a retrospective medical opinion regarding whether, the age at which, if any, J.T.B. was first shown to be permanently incapable of self-support due to his disabilities). 3. Issue an appropriate SOC addressing the issue of entitlement to recognition of J.T.B. as a helpless child of the Veteran (based on establishing permanent incapacity for self-support prior to age 18 years). The Veteran and his representative should be advised of the time afforded for perfecting an appeal in the matter, and afforded opportunity to do so. He should be advised that this matter will be fully before the Board only if he timely perfects an appeal of an adverse AOJ determination in the matter. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel