Citation Nr: 18148027 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-40 927A DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 21, 2015, the Veteran’s service-connected posttraumatic stress disorder (PTSD) with depression did not render him unable to obtain or maintain substantially gainful employment. 2. From October 20, 2015, the Veteran’s service-connected tinnitus and right ear hearing loss did not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Substitution The Veteran served on active duty in the U.S. Army from September 2002 to April 2003 and from September 2003 to March 2007. He died in June 2017. The appellant is his surviving spouse. The appellant filed a claim for Dependency and Indemnity Compensation in July 2017. The RO interpreted this as including a request to be substituted for the Veteran in his appeal for a TDIU and in a December 2017 letter notified the appellant that she met the requirements for substitution and informed her that she had been substituted. See 38 C.F.R. § 3.1010(c)(2) (2017). Therefore, the claim will be considered with the appellant substituted for the Veteran as the claimant. An eligible person may file a request to be substituted as the appellant for purposes of processing the claim to completion. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran in this case had been service-connected for PTSD with depressive disorder, tinnitus and right ear hearing loss. Service connection for PTSD had been in effect since February 23, 2011 at a 50 percent rating until July 21, 2015, when it was increased to 100 percent. Service connection for tinnitus and right ear hearing loss had been in effect since October 20, 2015; rated continuously as 10 percent disabling and noncompensable, respectively. The claim for a TDIU was received in October 20, 2015. Although the Veteran did not submit explicitly claim entitlement to a TDIU, in the October 2015 correspondence he claimed, inter alia, entitlement to an increased rating for service-connected PTSD. Because evidence of unemployability had also been received in connection with the claim for an increased rating, the RO raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In an April 2016 rating decision, it denied entitlement to a TDIU. Here, because the TDIU claim was ancillary to the increased rating claim, the TDIU claim is considered an increased rating claim for purposes of the application of effective dates. See, e.g. Hurd v. West, 13 Vet. App. 449 (2000). In this regard, applicable regulations provide that the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, it is the date of receipt of claim. 38 C.F.R. § 3.400(o). In other words, in relevant part, if the evidence shows that a TDIU was warranted less than one year before October 2015, then a TDIU would be warranted as of that date. Again, the Veteran has been in receipt of a 100 percent rating for PTSD with depressive disorder since July 21, 2015. As such, a TDIU predicated on PTSD with depressive disorder may not be assigned from that date onward as it is moot as to that disability. Prior to July 21, 2015, however, the Veteran’s service-connected PTSD with depression, rated as 50 percent disabling, does not meet the threshold schedular requirements. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In sum, therefore, if it were factually ascertainable that a TDIU were warranted at some point between October 20, 2014 (one year prior to the date of claim) and July 21, 2015 (the effective date of the 100 percent schedular rating), then the Board would have to refer the claim to the Director of Compensation for consideration of entitlement to extraschedular TDIU under 4.16(b). Here, however, the Board finds that such referral is not warranted because the evidence shows that the Veteran’s PTSD with depression first rendered him unemployable in July 2015. In this regard, a July 2015 VA treatment record shows that the Veteran reported that his trauma-related symptoms caused him to quit his job and drop out of classes at a community college and that he was currently seeking employment. An August 2015 VA treatment record shows that the Veteran reported that about one month prior, he began experiencing panic attacks that caused him to quit his job. A November 2015 VA treatment record shows that the Veteran stated that he was not currently employed and that although he had been working at BJ’s Wholesale Club and Avis, in July he began experiencing a lot of anxiety and had not worked since then. The above statements that the Veteran stopped working full time in July 2015 are also broadly consistent with his recollection at a February 2016 VA PTSD examination where he reported that he most recently worked full time at Avis a couple of months after leaving BJ’s Wholesale around March/April 2015. The Board must also consider whether the Veteran’s tinnitus and right ear hearing loss rendered him unemployable. Although the entire period during which the Veteran was in receipt of service connection for tinnitus and right ear hearing loss the Veteran’s combined disability rating was 100 percent, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Court of Appeals for Veterans Claims found that a TDIU may be assigned in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. In this case, as above, the Veteran’s tinnitus (10 percent) and hearing loss (noncompensable) do not meet the minimum threshold requirements for a schedular TDIU at any time during the appeal period. Again, in such circumstances, the Board must determine whether a remand for referral to the Director of Compensation is warranted. The Board again finds that such referral is not warranted. In this regard, at a February 2016 VA hearing loss and tinnitus examination, the Veteran reported that for the most part his hearing was OK but that “Sometimes I can’t hear.” The examiner there found that his hearing loss did not impact the ordinary conditions of daily life including the ability to work. As to tinnitus, the examiner noted that the Veteran reported that sometimes he could not concentrate or focus because the tinnitus was always there. In addition, as discussed above, the Veteran generally attributed the cause of his unemployability to his PTSD symptoms; an October 2015 VA treatment record again shows that he noted that it was difficult to maintain a job due to anxiety specifically. In sum, while the Veteran’s right ear hearing loss and tinnitus appear to have had some impact on his occupational functioning, there is no indication that those disabilities prevented employment. As such, the Board finds that referral to the Director of Compensation on this basis is also not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is sympathetic to the appellant’s circumstances and regrets that it cannot render a more favorable decision; however, the Board is bound by the law and is without authority to grant benefits on any other basis. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel