Citation Nr: 18140807 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-11 077 DATE: October 5, 2018 ORDER Entitlement to an effective date of March 1, 2009, but no earlier, for a total disability rating due to individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT From March 1, 2009, the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSION OF LAW From March 1, 2009, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 2002 to April 2002 and in the United States Army from June 2005 to May 2006. In July 2018, the Veteran appeared at a video hearing before the undersigned. A transcript of that hearing is of record. TDIU The Veteran has filed a claim of entitlement to total disability rating due to individual unemployability (TDIU). An award of TDIU “does not require proving 100 percent unemployability.” Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability “to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). When making this determination, “the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board “must take into account the individual veteran’s education, training, and work history” but “may not consider nonservice-connected disabilities or advancing age.” Id. (internal citations omitted). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31–32 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is “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. 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 31–32. Based on these criteria, the earliest available effective date for TDIU is December 7, 2007, the date that the Veteran filed claims of entitlement to increased ratings for a neck disorder, a left shoulder disorder, a left hand disorder, and a left foot disorder. Prior to that, in September 2006, the RO granted entitlement to service connection for a neck disorder, a left shoulder disorder, a left hand disorder, and a left foot disorder from May 26, 2006, the day after the Veteran left service. The Veteran timely filed a notice of disagreement. In May 2007, a statement of the case (SOC) issued and was mailed to the Veteran at an address in South Carolina. The SOC was re-mailed to an address in Florida on September 25, 2007. See August 2007 notification letter. On December 7, 2007, the RO received a VA Form 9. Because the Form 9 was filed more than 60 days after the September 25, 2007 mailing of the SOC, the earlier claims were not appealed and are final. 38 C.F.R. § 20.302(b). However, since the December 7, 2007 filing constitutes a new claim stream and evidence of unemployability was submitted during the pendency of this claim stream, the date of December 7, 2007, is the earliest available effective date for entitlement to TDIU. The Veteran filed his claim of entitlement to service connection for PTSD on December 10, 2007. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). From December 7, 2007, to December 9, 2007, the Veteran’s service-connected disabilities are PTSD at 30 percent, surgical discectomy and fusion (neck disorder) at 20 percent, left foot osteoarthritis at 20 percent, left shoulder impingement syndrome at 20 percent, neck scars at 0 percent, and left fifth metacarpal fracture at 0 percent with a combined rating of 50 percent. For this time period, the Veteran does not meet the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). From December 10, 2007, to March 30, 2009, the Veteran’s service-connected disabilities are PTSD at 30 percent, surgical discectomy and fusion (neck disorder) at 20 percent, left foot osteoarthritis at 20 percent, left shoulder impingement syndrome at 20 percent, neck scars at 0 percent, and left fifth metacarpal fracture at 0 percent with a combined rating of 60 percent. A September 2006 VA examination indicates that the Veteran injured his shoulder and neck in a combat training exercise and a December 2007 PTSD statement lists this incident as an in-service stressor. Since these three disorders constitute a combined disability rating of 55 percent, which rounds to 60 percent, the Veteran’s service-connected disorders constitute a single injury. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). From March 31, 2009, to November 2, 2010, the Veteran’s service-connected disabilities are PTSD at 50 percent, surgical discectomy and fusion (neck disorder) at 20 percent, left foot osteoarthritis at 20 percent, left shoulder impingement syndrome at 20 percent, neck scars at 0 percent, and left fifth metacarpal fracture at 0 percent with a combined rating of 70 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). From November 3, 2010, to December 31, 2010, the Veteran is rated at 100 percent under 38 C.F.R. § 4.30. From January 1, 2011, to March 21, 2011, the Veteran’s service-connected disabilities are PTSD at 50 percent, surgical discectomy and fusion (neck disorder) at 30 percent, left foot osteoarthritis at 20 percent, left shoulder impingement syndrome at 10 percent, neck scars at 0 percent, and left fifth metacarpal fracture at 0 percent with a combined rating of 80 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). The Veteran has been awarded TDIU from March 22, 2011. While the Veteran does not meet the schedular criteria for TDIU prior to December 10, 2007, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. In such cases, rating boards are to submit to the Director, VA Compensation Service, for extraschedular consideration Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards. 38 C.F.R. § 4.16(b). 1. Entitlement to an effective date of March 1, 2009, but no earlier, for a total disability rating due to individual unemployability (TDIU) From December 7, 2007, to February 28, 2009, the Veteran is not entitled to TDIU. A December 2011 TDIU application indicates that the Veteran worked as a manager for CiCi’s Pizza from June 2007 to November 2007, working 90 hours per week and missing 2 weeks due to illness. That same application indicates working as a manager for a seafood restaurant, which went bankrupt, from February 2008 to July 2008, where the Veteran worked 65 hours per week and missed 3 weeks due to illness. The employment periods reported in the Veteran’s December 2011 TDIU application are consistent with statements made to VA medical providers. According to a June 2007 VA medical record (received 2/24/09, page 12 of 26), the Veteran had to cancel a June 11, 2007 orthopedic consultation because he was unable to get off from work. This would have been near the time he started working for CiCi’s Pizza. The Veteran’s July 2008 VA PTSD examination indicates unemployment for “[l]ess than 1 year.” In an August 2008 VA medical record (received 4/14/09, page 51 of 116), the Veteran states that he last worked as an assistant manager at a seafood restaurant in July 2008. A February 2009 VA examination indicates that the Veteran is unemployed because after the restaurant he was working at “went bankrupt [the] [V]eteran was laid off.” Taken together, these records corroborate the Veteran’s statements in his December 2011 TDIU application regarding full-time employment for at least the periods from June 2007 to November 2007 and February 2008 to July 2008. From December 7, 2007, to February 28, 2009, the Veteran’s service-connected disorders alone do not preclude substantially gainful employment as a restaurant manager. The Veteran’s July 2008 VA PTSD examination describes the effect of PTSD on the Veteran’s occupational functioning as: “low [frustration] and anger with poor social interactions at times.” A February 2009 VA examiner states that the Veteran’s service-connected neck and shoulder disorders “would give him difficulty with overhead material handling[,] pushing[,] and pulling,” and “difficulty with drivin[g] due to loss of rotation.” Additionally, a November 2009 letter to the President (received 12/15/09, page 6 of 9) and a May 2011 VA PTSD examination (page 2 of 6) indicate that the Veteran was enrolled in college with a 3.66 GPA in biology during this time. The November 2009 letter further states that the Veteran hopes to return to the military as a doctor or an officer. Taken together, the Veteran was able to work as a restaurant manager for 65 hours per week or more from June 2007 to November 2007 and from February 2008 to July 2008. He quit his last position in July 2008 due to company bankruptcy, not due to service-connected disorders. VA examinations, including one dated February 2009, do not indicate that his service-connected disorders, alone or in combination, are sufficiently severe to preclude substantially gainful employment in his prior position as a restaurant manager. Also, the Veteran was enrolled in college with a 3.66 GPA in biology for at least part of this time period. For these reasons, from December 7, 2007, to February 28, 2009, the preponderance of the evidence is against a finding that the Veteran’s service-connected disorders alone are of sufficient severity to preclude substantially gainful employment as a restaurant manager. In concluding that the Veteran is not entitled to TDIU prior to March 1, 2009, the Board has considered the Veteran’s lay statements. In his July 2018 hearing transcript, the Veteran states: “The last time I actually worked was July 15th, 2008 before then it was part time ‘cause I just couldn’t function.” This statement is contradicted by his December 2011 TDIU application, which indicates that the Veteran was working 90 hours a week from June 2007 to November 2007 and 65 hours a week from February 2008 to July 2008. The Board will ascribe greater weight in the Veteran’s December 2011 TDIU application, which was filled out closer to the time of his last employment. Also, as already described, the statements about periods of employment contained in the December 2011 TDIU application are corroborated by other medical evidence of record. The Veteran’s July 2018 hearing testimony that he “couldn’t function” before July 2008 is also contradicted by the April 2011 VA examination. That examination states that the Veteran “last worked 2 years ago,” which would have been in 2009, and that it was at that time in 2009 that the Veteran “went out of work for pain in foot, neck, and shoulder.” The Board will ascribe greater weight to the contemporaneous statement made to a medical provider, which suggests that the Veteran’s musculoskeletal disorders did not preclude employment until after July 2008. Taken together, the preponderance of the evidence indicates that prior to March 1, 2009, the Veteran’s service-connected disorders alone were not of sufficient severity to preclude substantially gainful employment as a restaurant manager. The Board has also considered the Veteran’s social security records. Unfortunately, those files appear to contain no records dated after June 2007, and are therefore inapplicable to entitlement to TDIU after December 7, 2007. From March 1, 2009, the Board finds that the Veteran is entitled to TDIU. In describing the Veteran’s school experience, a March 2010 VA PTSD examination states that the Veteran “was doing well and in the past year his grades went from A’s to D’s.” The Veteran displays “negative outlook and thought process with feelings of helplessness, hopelessness and difficulty in dealing in social as well as occupational and school functions as noted.” Since one year prior to the March 2010 VA PTSD examination is March 1, 2009, the examination supports entitlement to TDIU from that date. Other evidence is consistent with the March 2010 examiner’s statement that the experienced a period of good grades followed by a drop in academic performance. In a November 2009 letter to the President (received 12/15/09, page 6 of 9), the Veteran states that he is enrolled in a “biology major program with a 3.66 GPA,” with the hope of returning to the military as a doctor or an officer. Consistent with this, the May 2011 VA PTSD examination (page 2 of 6) indicates that the Veteran was reportedly “doing well” in school, but that his grades slipped when he transferred schools in 2010, having to stop school for failure to focus or concentrate. Finally, during the July 2018 hearing, the Veteran stated that he did not complete the last classes for his college degree, which was in psychology, not biology, until after 2011. Also, he stated that he has not used his college degree. This evidence supports a drop in academic performance as early as March 2009. The month of March 2009 also appears to correspond to a period of worsening for the Veteran’s service-connected musculoskeletal disorders. In an April 2009 VA medical record, a doctor notes the following: “severe pain in tears not able to work or walk due to severe pain cannot wait for mri in September.” An August 2009 VA medical record (received 3/22/11, page 2 of 2) indicates “severe back and neck pain.” In a different August 2009 VA medical record (received 2/2/11, page 21 of 97), a VA medical provider says that she “[w]ill request urgent work up as [Veteran] in pain tearful not able to get around.” An April 2010 VA examination suggests minimal functional impairment due to the Veteran’s service-connected musculoskeletal disorders. But in an April 2011 VA examination (page 11 of 19), the Veteran states that he “last worked 2 years ago and went out of work for pain in foot, neck, and shoulder.” Two years prior to April 2011 is April 2009. Therefore, taken together, the evidence of record is consistent with a finding that from March 1, 2009, the Veterans service-connected disabilities alone are of sufficient severity to preclude employability. As already noted, prior to this time, there is evidence of employability, there is evidence of strong performance in school, and the medical evidence, including a VA examination dated February 2009, does not indicate that the Veteran’s service-connected disabilities alone are of sufficient severity to preclude substantially gainful employment in the Veteran’s prior position as a restaurant manager. However, the medical evidence suggests a worsening of service-connected PTSD from March 2009 and a worsening of service-connected musculoskeletal disorders from April 2009. While there is some evidence of improvement of his musculoskeletal disorders, the weight of the evidence as a whole suggests that from March 1, 2009, the Veteran’s service-connected disorders alone are of sufficient severity to preclude substantially gainful employment in his prior position as a restaurant manager. The Veteran is therefore entitled to an earlier effective date of March 1, 2009, but not earlier. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel