Citation Nr: 18147078 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-35 656A DATE: November 2, 2018 ORDER Entitlement to an effective date earlier than May 19, 2011, for the award of a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT 1. The evidence of record demonstrates that the Veteran’s application for a TDIU was received by VA on May 19, 2011. 2. There is no evidence of an earlier unresolved increased rating claim and no factually ascertainable evidence demonstrating that within the one-year period prior to May 19, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than May 19, 2011, for the award of a TDIU have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(2) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1967 to December 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to an effective date earlier than May 19, 2011, for the award of a TDIU. VA regulations provide that the terms claim and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (effective prior to March 24, 2015). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2018). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (hereinafter “the Court”) has held that a claim for entitlement to TDIU is a rating theory and “not a separate claim for benefits.” See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board, however, is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). A VA failure of a duty to assist a veteran or even the existence of “grave procedural error” do not render a VA decision non-final. See Cook v. Principi, 318 F.3d 1334, 1348 (Fed. Cir. 2002). A total rating for compensation 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a) (2018). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a) (2018). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2018). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA law provides that the effective date for an award of disability compensation for an increased rating claim shall 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 of such date, otherwise from the date of receipt of the claim. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(2) (2018). The Veteran contends that an effective date for the award of his TDIU should be from the last date of his employment on June 3, 2009. He further contends, in essence, that a May 2011 Court order granting the provisions of a stipulation agreement should be construed as establishing his entitlement to such benefits from this date. By way of history, the Board issued a decision in May 2005 that denied entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from June 8, 1998, to November 1, 2004. The issues of entitlement to an increased evaluation for PTSD in excess of 50 percent for the period from November 1, 2004, and whether an August 2004 rating decision severing service connection for PTSD and tinnitus was proper were remanded for additional development. At his Board hearing in August 2006 the Veteran agreed to withdraw his remaining appeal for a higher PTSD rating if his appeals for service connection were restored. A November 2008 Board decision found the August 2004 rating determinations severing service connection for PTSD and tinnitus were proper. The remaining PTSD rating evaluation matter previously remanded was, therefore, moot. The Veteran subsequently appealed the November 2008 Board decision and in a May 2011 order the Court granted a joint motion to terminate the appeal under the terms of a settlement agreement. That stipulated agreement provided that VA would reinstate service connection for PTSD and tinnitus effective from August 24, 2004, the date of severance, and that the Veteran agreed to terminate, with prejudice, all issues addressed in the November 2008 Board decision. A May 2011 rating decision reinstated service connection for PTSD and tinnitus. VA records show service-connection is established for PTSD (50 percent), residuals of left arm fracture (40 percent), tinnitus (10 percent), hearing loss (10 percent), residuals of bone graft from the right iliac crest (0 percent), scars to the left ear and forehead (0 percent), residuals of a jaw fracture (0 percent), and scar to the left forearm (0 percent). Combined evaluations for compensation were 70 percent from June 8, 1998, and 80 percent from May 19, 2011. The Veteran submitted his application for entitlement to a TDIU on May 19, 2011, and reported that he had last worked as a VA employee and became too disabled to work in June 2009. He reported annual earnings from employment in 2008 as an outreach representative of approximately $70,000. A May 2011 VA report verified the Veteran’s past employment and earnings. It was noted he had retired voluntarily and that during his employment he had asked for no concessions in his employment by reason of age or disability. VA treatment records include a June 2011 mental health history and assessment report noting a diagnosis of PTSD and providing a Global Assessment of Functioning (GAF) score of 56. It was noted the Veteran had retired from VA employment. The treatment plan included supportive counseling and medical management for three month and referral for therapy if an exacerbation of PTSD did not resolve by the next visit. The Veteran reported that he felt he had the coping skills to manage the exacerbation. A July 2012 rating decision denied entitlement to a TDIU. In his September 2012 notice of disagreement from that determination the Veteran reported that he had retired, in essence, under duress and that he had employment problems for a year and a half prior to his retirement. He reported that his VA medical care providers had stated that his returning to gainful employment was doubtful due to his service-connected disabilities. An April 2015 VA PTSD examination included a diagnosis of PTSD and found the disorder was best described as an occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran was not looking for work and that his last VA examination assessed employment was feasible in a loosely supervised work setting that required little interaction with others. Based upon the evidence of record, the Board finds that the Veteran’s application for a TDIU was received by VA on May 19, 2011, and that there is no evidence of an earlier unresolved increased rating claim. There was also no factually ascertainable evidence demonstrating that within the one-year period prior to May 19, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Board notes that the issue of entitlement to a rating in excess of 50 percent for PTSD prior to November 1, 2004, was moot as a result of the November 2008 decision and the issue was not reinstated as a matter on appeal as a result of the May 2011 stipulation agreement. The available evidence also clearly demonstrates that the Veteran retired voluntarily from his VA employment in June 2009, and that the medical evidence shows his PTSD prior to May 2011 was manifest by no greater occupational impairment than indicated by the assigned schedular rating. Therefore, the appeal must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel