Citation Nr: 18152157 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-44 922 DATE: November 21, 2018 ORDER Entitlement to an effective date prior to December 15, 2014, for the award of a total disability rating based on individual unemployability (TDIU), is granted. FINDING OF FACT The Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected PTSD and he has met the schedular requirements for entitlement to a TDIU since January 21, 2010. CONCLUSION OF LAW The criteria for an effective date of January 21, 2010, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision that granted entitlement to a TDIU and assigned an effective date of December 15, 2014. The Veteran originally filed a claim for service connection for depression and a heart condition that was received by VA on January 21, 2010. Service connection for both claims was denied in a June 2010 rating decision. Later, in June 2010, the Veteran filed a claim for post-traumatic stress disorder (PTSD) that was denied in a September 2010 rating decision. In October 2010, the Veteran filed a Notice of Disagreement (NOD) regarding PTSD and depression, but after liberalizing amendments regarding PTSD came into effect, VA reconsidered the Veteran’s PTSD claim. See 38 C.F.R. § 3.304(f). Nevertheless, in a May 2011 rating decision, the denial of the Veteran’s PTSD claim was confirmed and continued. In the meantime, the Veteran’s claim for a heart condition was reconsidered in light of the ruling in Nehmer v. U.S. Department of Veterans Affairs; but it was denied once again in a January 2011 decision. In November 2011, the Veteran filed an NOD regarding his heart condition and PTSD. Service connection for PTSD was ultimately granted in a June 2014 rating decision and a 30 percent disability rating was assigned. This rating was increased to 70 percent in an October 2014 rating decision. Coronary artery disease was ultimately granted in a February 2015 rating decision and a 30 percent disability rating was assigned. Both grants were effective as of January 21, 2010, the date that the original claims for depression and a heart condition were received at VA. A deferred rating decision indicates that, in October 2014, VA sent the Veteran a VA Form 21-8940 Application for Increased Compensation Based on Unemployability because the Veteran met the schedular requirements for a TDIU once his PTSD disability rating was increased to 70 percent. The Veteran completed this form and it was received at VA on December 15, 2014. As stated above, the Veteran was granted a TDIU in a June 2015 rating decision and assigned an effective date of December 15, 2014, the date his TDIU claim was received at VA. The Veteran asserts that his award of a TDIU should be effective as of January 21, 2010, the date of his original claims for service connection. Laws and Analysis In general, the effective date of an award of compensation and rating based on an initial claim for benefits will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A “claim” is defined as 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), 3.151; see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim; but an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court of Appeals for Veterans Claims clarified that an initial claim for service connection for a disability may include an assertion of entitlement for TDIU based on that disability. Indeed, at any time during the pendency of a claim, a veteran may explicitly assert such an entitlement, or it may be reasonably raised by the evidence of record. Rice, 22 Vet. App. at 453-54. In such cases, the determination of whether a veteran is entitled to a TDIU, including the effective date for that award, is “part and parcel of the initial rating for that disability.” Rice, 22 Vet. App. at 455. A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and when the veteran has certain combinations of ratings for his service-connected disabilities. If the veteran has only one such disability, that disability must be ratable at 60 percent or more. If he has two or more disabilities, there must 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. 38 C.F.R. § 4.16(a). A finding of entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he can actually find employment. Advancing age and the impairment caused by nonservice-connected disabilities are not considered. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of evaluating whether a TDIU is warranted, marginal employment, or employment provided on account of disability or special accommodation, is not considered substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Similarly, odd-job employment or employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a). The Veteran is currently in receipt of a TDIU as of December 14, 2015, the date that his formal application for a TDIU was received at VA. He asserts that he is entitled to a TDIU as of January 21, 2010, the date his original claims for his service-connected disabilities were received at VA. As stated above, the issue of entitlement to a TDIU is “part and parcel” of an initial claim for service connection when a veteran submits evidence of his inability to work during the pendency of his claim. As such, the effective date of a TDIU may be as early as the effective date applicable to that claim. See Rice, 22 Vet. App. at 454. A review of the claims file reveals not only that the Veteran raised the issue of a TDIU mere months after his claims for service connection were received, but that TDIU is indeed warranted as of that date. In March 2010, less than two months after the Veteran filed his claim for PTSD, he submitted a letter from his private doctor that clearly asserted that the Veteran is unable to work due to that condition. Specifically, the letter states that the Veteran’s PTSD “is severe and contributes to the primary reason for his inability to work.” The Veteran is “easily angered, quick to enter an argument, is suspicious of people, is depressed, lacks energy, is easily fatigued and depressed.” Overall, “he does not meet the requirements of those characteristic found to be sought by employers: dependability, motivation, initiative, flexibility and positive attitude.” An August 2010 VA examination that followed confirmed that the Veteran worked only part-time (three or four hours per day). Although the examiner found that the Veteran was not occupationally impaired, the Veteran’s private doctor provided an additional letter, dated November 2012, that offered additional details about the Veteran’s inability to work. Specifically, the doctor explained that the Veteran owned his own plumbing business for twenty years, but he recently handed it over to his son “because it became too difficult to deal with people” and he could not “withstand the rigors and demands of business.” The Veteran would become angered and irritable over minor issues, he was not sleeping, and he was feeling physically and emotionally depleted. The doctor stated unequivocally that the Veteran is incapable of retaining and maintaining substantial employment. He noted that the Veteran’s continued part-time work is done “mainly to help [his] kids” with the business by occasionally installing a faucet, fixing a leak, or paying the business bills. The doctor explained that although the Veteran attributed his inability to work to his physical conditions, his decisions at work were based on limited frustration tolerance, increased irritability, anxiety, moodiness and decreased motivation, all of which are related to his PTSD. Notably, the doctor concluded that the Veteran could maintain part-time work only because he was working for his family business that permitted him to “come and go, dependent on his daily condition.” The Veteran “could not work in any setting even marginally in other than his own company due to his PTSD.” Finally, in January 2013, the Veteran provided testimony about the effects of his PTSD in a private deposition. He confirmed that he stopped working full-time in approximately 2011, and that his job, thereafter, consisted only of answering phones for his son and bringing material to a job if it was needed. He remarked that he does not get paid. At a VA examination in July 2014, the Veteran disclosed that he had not worked at all since 2012, although he occasionally volunteered to do his son’s paperwork from home. While there is some inconsistency as to the date that the Veteran handed over the business to his son, the Veteran’s formal TDIU application indicates that the Veteran’s PTSD affected his full-time employment in 2009. Moreover, a Request for Employment Information completed in June 2015 confirms that the Veteran began “light plumbing work” in 2009 and last worked in November 2010. Based on the foregoing, the Board finds that the Veteran was unable to secure and maintain substantially gainful employment as early as 2009, and that evidence to this effect was submitted in conjunction with his original claim for service connection for PTSD. The record consistently shows that the Veteran gave up his business to his son in or around 2009 because of the effects of his PTSD, and that, until approximately 2012, he continued to work in only a minor and marginal capacity for the family business. He completed odd jobs to assist his son in running the business, he eventually was not paid for his work, and he would have been unable to work in any capacity for any other business that did not offer him the unique latitude and accommodations of his family business. (continued on next page) Accordingly, the Board finds that the Veteran’s initial January 21, 2010 claim for service connection for PTSD was also an implicit attempt to obtain an appropriate rating for this disability once compensation was established for it. Thus, that claim was also a claim for a TDIU. As a result, an effective date of January 21, 2010 for the award of a TDIU is warranted. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel