Citation Nr: 18152175 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-30 574 DATE: November 21, 2018 ORDER An effective date prior to December 6, 2010, for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. A claim for a TDIU was received by VA within one year of the grant of service connection for posttraumatic stress disorder (PTSD) and Hepatitis C. 2. It is not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to December 6, 2010. CONCLUSION OF LAW The criteria for an effective date prior to December 6, 2010, for the award of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1984 to August 1984, May 1985 to October 1986, and April 1988 to September 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office. The Veteran seeks an effective date prior to December 6, 2010, for the award of a TDIU. Specifically, he argues the effective date should be April 29, 2003, the date he believes VA reopened a claim for service connection claim for posttraumatic stress disorder (PTSD). A TDIU claim qualifies as a claim for increased disability compensation. The United States Court of Appeals for Veterans Claims (Court) determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). As pertinent to the instant matter, a “claim” is defined broadly to include 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) (2017); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Turning to the requirements for establishing a TDIU, it is the recognized 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. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate “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)(1), 4.15 (2017). A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). In this regard, the Veteran meets the schedular criteria for a TDIU as of January 15, 1998. By way of history, a January 2010 rating decision implemented the Board’s award of service connection for PTSD and Hepatitis C and inferred and deferred a claim for a TDIU, finding the record had raised the issue of whether the Veteran’s service-connected PTSD negatively impacted his employability. Although the Board questions the basis for the AOJ’s inference of the claim, it will accept such as valid. In the rating decision issued in October 2010, the AOJ denied a TDIU. On December 6, 2010, the Veteran submitted VA 21-8940 Application for Increased Compensation Based on Unemployability. By rating decision issued in August 2015, the AOJ granted a TDIU and assigned an effective date of December 6, 2010, based on the receipt of the Veteran’s formal claim. As noted above, the Veteran asserts that the AOJ should have assigned an effective date for a TDIU in accordance with the effective date of the award of service connection for PTSD. In this regard, the Board notes the Court’s finding in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), that if a claim for a TDIU is received by VA within one year of the grant of service connection, it is not part of a new claim for increased compensation; rather it is part of the initial application for benefits for that disability. In the instance case, VA received the Veteran’s formal claim for a TDIU in December 2010, which is within the one-year period following the January 2010 award of service connection for PTSD. Therefore, VA, under Mayhue, may consider the claim for a TDIU part of the initial application for benefits for PTSD, which VA received on May 2, 2003. As noted above, an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). As such, the Board will consider the evidence dated from May 2, 2002, to December 6, 2010, for the issue on appeal. Here, the Board finds it is not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to the currently assigned effective date of December 6, 2010. In this respect, the Board has carefully considered that a TDIU is warranted 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)(1), 4.15. To better understand the Veteran’s employability picture, the Board has considered evidence dated prior to the appeal period despite its’ irrelevancy. In the Veteran’s formal claim, he reported that he last worked full-time in 1995 and became too disabled to work that same year. Specifically, he previously worked as a driver, in the service industry, and as a laborer. Notably, the Social Security Administration (SSA) found the Veteran became disabled in November 1991 due to “functional nonpsychotic, anxiety related disorders and affective disorders.” In this regard, however, SSA determinations are not binding on the Board. In this case, the Board finds it pertinent that the symptoms and impact thereof that support a TDIU may not be permanent, as indicated by the evidence of record showing the Veteran worked after 1991. For example, a psychological evaluation in August 1996 indicates the Veteran was working, albeit less than part-time, at Columbia Sweeping, and the examiner found the evidence suggested the Veteran had the ability to perform unskilled work away from a lot of interpersonal contact. In addition, the Veteran himself reported that he could do janitorial work, particularly if such was solitary, and that he was attempting to find at least part-time work. VA examination in November 2002 indicates the Veteran had been unemployed for the last five years; however, the VA examiner did not provide an opinion as to whether a service-connected disability rendered the Veteran unemployable. Although a private mental health counselor found the Veteran’s “vocational prognosis” was poor, the Board finds the language in such statement is vague and inconclusive and, therefore, deserves little probative weight. On VA examination in October 2009, the Veteran inconsistently reported he had not worked since 1996, rather than 1995, because he was mentally incapable of working. Although the VA examiner found it was unlikely the Veteran could function in a normal work environment due to the nature of his stressors, the Board finds the opinion does not deserve significant probative value. First, the VA examiner subsequently in the report opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks [emphasis added]. Second, the Board notes the phrase “normal work environment” does not necessarily exclude all gainful employment. In this respect, the responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Furthermore, by the time of the issuance of the January 2010 rating decision, the AOJ had adjudicated all pending claims (other than that for entitlement to a TDIU) that had been raised formally or informally since VA received the Veteran’s original claim for service connection in November 1989. In this regard, a rating decision issued in June 1991 assigned a rating for the Veteran’s service-connected left knee injury; however, the Veteran did not enter a notice of disagreement as to the propriety of the assigned rating. In March 1996, the AOJ denied a TDIU. Subsequently, the AOJ found the Veteran’s notice of disagreement untimely, a finding with which the Veteran also disagreed. Although he submitted a substantive appeal in August 1997 concerning the timeliness of the notice of disagreement, he clearly withdrew the appeal in a September 1997 written statement. (Continued on the next page)   A rating decision issued in June 1998 and March 2009 also assigned various ratings for the Veteran’s service-connected disabilities; however, the Veteran did not enter a timely notice of disagreement as to the propriety of the assigned ratings for the service-connected disabilities adjudicated therein. Additionally, no new and material evidence was physically or constructively added to the record within a year of the issuance of such decisions and no relevant service department records were subsequently received. As such, these decisions are final and the Board finds Mayhue inapplicable, and that such may not provide the basis for an effective date prior to December 6, 2010, for the award of a TDIU. 38 U.S.C. § 7105(c) (West 1991, 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1991, 1995, 1998, 2008) [(2017)]. Furthermore, following the issuance of the most recent final rating decision in March 2009, the Veteran did not file a formal or informal claim for an increased rating for a service-connected disability or a TDIU prior to the receipt of his formal claim for a TDIU on December 6, 2010. (Continued on the next page)   Consequently, the Board finds the preponderance of the evidence does not indicate the Veteran’s service-connected disabilities, either singularly or jointly, rendered him unable to secure or follow a substantially gainful occupation more than one year prior to the filing of the initial claim in May 2003, and as such, the effective date is the date of increase. See generally Harper, 10 Vet. App. 125. In this respect, the Board further finds it is not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to the currently assigned effective date of December 6, 2010. Accordingly, the effective date of December 6, 2010, for the award of a TDIU is proper, there is no doubt to be resolved, and the Veteran’s appeal must be denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel