Citation Nr: 18147180 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 03-15 222A DATE: November 2, 2018 ORDER An effective date of February 12, 2008, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s claim for TDIU was expressly raised in June 2010 during the pendency of his increased disability rating claim for post-traumatic stress disorder (PTSD). 2. The earliest possible effective date is February 12, 2008 given the Veteran’s claim for an increased disability rating for PTSD was received by the VA on February 12, 2009. CONCLUSION OF LAW The criteria for an effective date of February 12, 2008, but no earlier, for the award of TDIU have been met. 38 C.F.R. §§ 1155, 5110 ; 38 C.F.R. §§ 3.340, 3.341, 3.400(o), 4.16(b), 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1967 to June 1968, during the Vietnam Era. 1. The issue of entitlement to an effective date prior to February 12, 2009 for the award of TDIU. The Veteran contends that he is entitled to an effective date prior to February 12, 2009 for the award of TDIU. See August 2011 Letter from the Veteran’s Representative. More specifically, the Veteran’s representative contends that an effective date of August 28, 2000 is warranted for TDIU. See September 2018 Letter from the Veteran’s Representative; September 2015 Letter from the Veteran’s Representative; see also August 2011 Letter from the Veteran’s Representative (stating that an effective date from November 6, 2001 was warranted). In light of the above, the Board must first address the procedural posture of the Veteran’s prior claims for TDIU and this appeal. He first expressly raised a claim for TDIU in July 2005. July 2005 Veteran’s Application for Increased Compensation Based on Unemployability. While he raised this claim during the pendency of his claim for an increased, initial disability rating for post-traumatic stress disorder (PTSD) and service connection claim for coronary artery disease (CAD), the Board adjudicated his claims for an increased, initial disability rating for PTSD and service connection for CAD in December 2006 without addressing the issue of TDIU. December 2006 Board Decision. Although the Veteran appealed the Board’s December 2006 Board Decision to the United States Court of Appeals for Veteran’s Claims (Court), he did not raise the issue of TDIU. With respect to the Board’s denial of an increased disability rating for PTSD, the Court upheld the Board’s final decision. February 2009 Memorandum Decision. As such, the Board’s decision in that respect remained undisturbed. 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). However, the Court vacated the Board’s denial of service connection for CAD and remanded it for further action consistent with the Court’s decision. February 2009 Memorandum Decision. Prior to the Court’s decision, the Regional Office (RO) separately adjudicated and denied the issue of TDIU in a January 2007 rating decision. He did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). In a March 2010 decision, the Board eventually granted service connection for CAD also without addressing the issue of TDIU. March 2010 Board Decision. The Board’s decision was final and as he did not appeal this decision to the Court it remains undisturbed. 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). Between the January 2007 rating decision and the March 2010 Board decision, a review of the claims file reveals no claim for TDIU was raised expressly or reasonably by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thereafter, the Veteran expressly raised another claim for TDIU in June 2010, requesting the RO adjudicate the issue of TDIU once more while enacting the Board’s March 2010 grant of service connection for CAD. June 2010 Letter from the Veteran’s Representative. This claim was raised during the pendency of an increased disability rating for PTSD. See February 2009 Letter from the Veteran; June 2010 Letter from the Veteran. As such, it became part and parcel of that claim. See Rice, supra. In such cases, if factually ascertainable, the effective date assigned may be up to one year prior to the date the application for increased was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o); February 2009 Letter from the Veteran (the Veteran initiated his increased disability rating for PTSD, which was received by the VA on February 12, 2009). Thus, here, the earliest possible effective date is February 12, 2008. During this timeframe, the Veteran was service-connected for PTSD, with a 30 percent disability rating effective prior to February 12, 2009; and for CAD, with a 10 percent disability rating prior to June 3, 2010. See July 2014 Rating Decision Codesheet. Consequently, at no time during the pertinent period did he meet the minimum disability rating percentage threshold for schedular TDIU consideration. 38 C.F.R. § 4.16(a). Nevertheless, even when a veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. Rather, the Board may only consider whether referral for extraschedular TDIU to the Director, Compensation Service (Director) is appropriate. In a December 2017 decision, the Board referred the issue of extraschedular TDIU to the Director. December 2017 Board Decision. Upon review, the Director determined that TDIU on an extraschedular basis was not warranted prior to February 11, 2009. March 2018 VA Director Recommendation; March 2018 Director Administrative Review Decision. In doing so, the Director acknowledged the Veteran’s limited educational attainment restricted him to physical employment positions. In terms of his occupational impairment due to his service-connected disabilities, the Director noted there was no indication that he was totally impaired as a result of his PTSD prior to February 11, 2009 based on the findings of an April 2007 VA examiner. March 2018 VA Director Recommendation; March 2018 Director Administrative Review Decision; April 2007 PTSD VA Examination Report. Further, the Director noted the medical records associated with his CAD indicated his heart condition was and remained stable after his bypass surgery. Instead, the medical records prior to February 11, 2009 reveal that he received treatment for his non-service connected severe back condition. As the Director has considered the issue of TDIU on an extraschedular basis, the issue may now be addressed by the Board on its merits. See Wages v. McDonald, 27 Vet. App. 233, 236-37 (2015). A review of the claims file shows the Veteran was unemployed during the relevant timeframe. However, the sole fact that he is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. The evidence must show that he is incapable of performing the physical and/or mental acts required by employment by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As a disability rating in it of itself recognizes the impairment makes it difficult to obtain and keep employment, in order for the Veteran to prevail on a claim of TDIU the record must reflect some factor that takes his case outside the norm. See Van Hoose, supra; see also 38 C.F.R. §§ 3.321(a), 4.1 (2017). A review of the claims file shows the Veteran has submitted two Veteran’s Application for Increased Compensation Based on Unemployability in the past associated with earlier claims for TDIU; one in July 2005, then another in June 2010. Initially, in the July 2005 Veteran’s Application for Increased Compensation Based on Unemployability, he cited he was unemployed due to his service-connected PTSD and CAD as well as his non-service connected back condition. Of note, at that time, he explained that while the records may show that he was receiving disability income from the Social Security Administration due to his back condition, he insisted a significant factor of his unemployability was due to his PTSD symptoms. There was no reference to any CAD symptoms impacting his employability. A review of both Veteran’s Application for Increased Compensation Based on Unemployability establishes the Veteran’s educational attainment is limited. He did not have a high school diploma and was only able to complete the tenth grade. He never earned a General Equivalency Diploma. He never received any other education or training. During a June 2005 VA examination, he reported that he only completed the ninth grade and could only read at a sixth-grade level. June 2005 PTSD VA Examination Report. The Veteran’s employment history is also limited. He was employed full-time as a truck driver for a landfill company from 1978 to approximately 1995/1996. Neither of his Veteran’s Application for Increased Compensation Based on Unemployability include any other employment history. However, the Board notes during an April 2007 VA examination, he relayed that he worked on his family farm immediately following discharge from service. April 2007 PTSD VA Examination Report. Thereafter, he went into the heating and plumbing field for a few years. He also worked in the carpentry field. Ultimately, he took the position at the landfill running a loader and truck. In terms of the Veteran’s CAD, he underwent one VA examination during the pertinent timeframe in April 2008. April 2008 Heart VA Examination Report. During the April 2008 examination, the Veteran reported experiencing shortness of breath with exertion, sharp needle-like pain in through the back with activities like climbing one flight of stairs, walking 200 yards, lifting 25 pounds for a distance of 30 feet, or first exposure to cold air. He also reported symptoms of daily fatigue, monthly angina and dyspnea with moderate exertion. The VA examiner noted a stress test from 2006 returned normal. Dr. B.H., the Veteran’s private treatment provider, submitted a letter in October 2015 stating the Veteran has been under his care for a number of years for CAD. Dr. B.H. opined the Veteran has been permanently disabled since approximately 2000 due to his CAD. Although, Dr. B.H. indicated he had an aggressive form of CAD which required a prior bypass surgery and has had acute coronary syndrome leading to stenting in 2012, 2013 and 2015, and as a result he has been totally disabled. Dr. B.H. did not describe the physical limitations resulting from his CAD supporting the conclusion that he was totally disabled. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). To the contrary, a review of the Veteran’s treatment records pertaining to his CAD disclose that during the relevant time period he was doing well in that regard. No ongoing chest pain or other symptoms were reported. April 2008 L.C.C.A. Treatment Note. Overall, his CAD was stable. In fact, in March 2009 L.C.C.A. Treatment Note documented that he has had a good year. He had been quite active without any ongoing chest pain or shortness of breath. Although the March 2009 L.C.C.A. Treatment Note did not indicate what he meant by active, the Board notes in the past he when has reported being active, it included being able to go hunting. October 2002 L.C.C.A. Treatment Note. Further, he was able to undergo a stress test in September 2004 during which he was able to achieve a metabolic equivalent of 10.1, which is greater than the maximum of 10 METs required for a compensable disability rating albeit infinitesimally. 38 C.F.R. § 4.104, DC 7005 (2017); September 14, 2004 L.C.C.A. Treatment. He was able to achieve this METs level despite complaints of occasional chest discomfort regardless of exertion just a week prior to the stress test. September 7, 2004 L.C.C.A. Treatment Note. Of significance, the Board notes these treatment notes were authored by Dr. B.H. The Veteran’s son, P.H. submitted Buddy Statements in July 2011 and September 2015. In the July 2011 Buddy Statement, P.H. stated the Veteran’s began having chest pain again in 2000, which was far more serious than the previous occasions. As a result, he underwent bypass surgery. Following the surgery, P.H. relayed that he could tell the Veteran’s CAD was taking a toll on his body. The Veteran’s recovery has been slow and his activity level is severely limited. The Veteran struggled to go to the mailbox and when he returns his lips are blue and his skin is ashen. The Veteran is constantly short of breath with any type of activity, experienced chest pain, becomes cyanotic throughout his body, sweats profusely and experienced numbness in his extremities on exertion. As a registered nurse, P.H. explained that he had the training to detect the signs and symptoms of cardiac-related conditions. In the September 2015 Buddy Statement, P.H. relayed that for as long as he could remember the Veteran’s life has revolved around his CAD. He recalled the Veteran suffering from chest pain and undergoing open heart surgery. As he has grown older, he has observed the Veteran’s CAD worsen. He described the Veteran tired quickly, is barely able to walk any appreciable distance without needing to stop and rest. Again, P.H. explained that he had medical training and experience as an emergency medical technician and as a nurse. He relayed a recent incident when the Veteran was home alone and experiencing heart problems. He arrived to find the Veteran suffering from severe chest pain and sweating profusely. The Veteran had to be transported by ambulance to a hospital. While P.H. is competent to provide both lay and medical evidence regarding the functional limitations resulting from the Veteran’s CAD, unfortunately, neither of P.H.’s Buddy Statements provides the Board a clear timeline to assess the functional impairment he suffered from CAD during the relevant time period. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013); Jones v. West, 12 Vet. App. 460, 465 (1999); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As another matter, P.H.’s observations are seemingly inconsistent with his treatment records detailed above. The Veteran’s wife, C.H., also submitted Buddy Statements in July 2011 and September 2015. In the July 2011 Buddy Statement, she stated he was unable to do much of anything. It took him all day to mow the lawn with a riding lawn mower because he had to take breaks. The Veteran could not do any job for any length of time because he had to take breaks. He tries to keep up with other people, but always seems to lag behind. They used to go out dancing, but now is always the first one to go home. He is unable to walk any distance. He seemed to be tired all the time. Again, C.H.’s July 2011 Buddy Statements does not provide the Board a clear timeline to assess the functional impairment the Veteran suffered from CAD during the pertinent time period. See Madden, supra. In the September 2015 Buddy Statement, C.H. largely described the impact of the Veteran’s PTSD symptoms consistent with the VA examination findings discussed below. The Veteran submitted a September 2015 evaluation conducted by Dr. M.L.C. bearing on the issue of TDIU as well as a supplement to the same in August 2018. In the end, Dr. M.L.C. opined he has been profoundly disabled from the combination of his PTSD and CAD since 2000. However, Dr. M.L.C.’s evaluations primarily focused on the occupational and social impairment stemming from his PTSD. Although Dr. M.L.C. touched on the functional impairment stemming from his CAD, Dr. M.L.C. failed to reconcile the L.C.C.A. Treatment Notes outlined above with his conclusions. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Thus, the Board accords Dr. M.L.C.’s conclusion regarding the functional impairment stemming from his CAD no probative value. See Madden, supra. Considering the above, the Board finds the there is insufficient evidence of record to demonstrate the Veteran would be precluded from all physical employment due to his CAD during the pertinent period. Nevertheless, even if he retained the physical ability to engage in employment during this period, the Board must also consider whether he retained the mental ability to engage in either physical or sedentary employment. There is no VA examination addressing the severity of the Veteran’s PTSD symptoms during the relevant period. The two closest in time are the April 2007 and October 2009 VA examinations. April 2007 PTSD VA Examination Report; October 2009 PTSD VA Examination Report. Following the April 2007 examination, the VA examiner concluded the Veteran’s relevant PTSD symptoms were social isolation, sleep disturbance, lowered frustration tolerance, avoidance of crowded areas, exaggerated startle response, affective numbing, avoidance of activities, road rage, panic attacks, worry, nightmares, flashbacks and reduction in ability to derive true pleasure from life. Despite finding that he would be unemployable due to his limited education and physical disability, which the VA examiner specified in their Axis III finding as a back injury, the VA examiner did not proffer an opinion regarding the resulting severity of his occupational and social impairment due to these symptoms. In particular, the Board also notes during this VA examination, the Veteran reported the position at the landfill was a good placement for him because he only worked with only three other people who he had known since childhood. He had limited contact with other co-workers. A review of the October 2009 PTSD VA Examination Report shows the VA examiner largely noted the same relevant PTSD symptoms as the April 2007 VA examiner; nightmares, fear of crowds, flashbacks, hypervigilance, lack of motivation to socialize, isolation and foregoing leisure activities. In doing so, the VA examiner concluded there was total occupational and social impairment due to these PTSD symptoms. In light of the October 2009 VA examiner’s finding there was total occupational and social impairment due to the Veteran’s PTSD symptoms and he demonstrated the same symptoms during the April 2007 VA examination, the Board finds the preponderance of the evidence factually establishes he was totally occupationally impaired due to his PTSD symptoms on February 12, 2008. Consequently, regardless of his physical ability, the Board finds the preponderance of the evidence establishes he did not have the mental capacity to engage in any form of substantially gainful employment from February 12, 2008. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400(o), 4.16(b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel