Citation Nr: 18153907 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-40 619 DATE: November 29, 2018 ORDER Entitlement to an effective date earlier than April 6, 2016 for the award of entitlement to a TDIU rating due to the service-connected PTSD is denied. FINDING OF FACT Prior to April 6, 2016, the Veteran was engaged in more than marginal employment and thus his service-connected disabilities did not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to April 6, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to August 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. By that rating action, the RO continued a 70 percent rating assigned to the service-connected posttraumatic stress disorder, and denied entitlement to TDIU. VA received the Veteran’s Notice of Disagreement with the RO’s October 2014 rating action and its determinations therein in January 2015. (See VA Form 21-0958, Notice of Disagreement, received by VA in January 2015). In an August 2016 Statement of the Case, the RO, in part, granted entitlement to a TDIU rating, effective April 6, 2016--the date of a VA examination report containing the examiner’s opinion that the Veteran’s service-connected PTSD had prevented the Veteran from sustaining physical and sedentary employment. In August 2016, the Veteran submitted a substantive appeal, wherein he limited his appeal to the RO’s assigment of an effective date of April 6, 2016 for the award of entitlement to TDIU. The Veteran seeks entitlement to an effective date earlier than April 6, 2016 for the award of service connection for a TDIU rating. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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. The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. Effective prior to March 2015, VA regulations provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. Also effective prior to March 2015, VA regulation provided, in relevant part, that a report of examination, treatment, or hospital admission by VA will be accepted as the date of receipt of claim for increased benefits when it pertains to a disability for which service connection has previously been established. 38 C.F.R. § 3.157. In order to qualify as an informal claim under § 3.157, the VA report in question must (1) identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013); Massie, 724 F.3d at 1328-29. Unlike other informal claims, there is no requirement that an intent to file a claim be shown under § 3.157. Further, the provisions of 38 C.F.R. § 3.400 (o), whereby a rating increase can be granted up to one year prior to the date of claim, also apply to claims submitted under § 3.157. Massie, 25 Vet. App. at 132. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present appeal. As noted, in Rice v. Shinseki, 22 Vet. App. 447, 453, 455 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant appeals the initial disability rating for a service-connected disability and also submits evidence of unemployability, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is also warranted. Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o). See Rice, 22 Vet. App. at 454. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Importantly, where the evidence establishes that a veteran is gainfully employed on a full-time basis, a TDIU cannot be granted during this period as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). For the reasons delineated below, the Board finds that the preponderance of the evidence of record is against an effective date earlier than April 6, 2016 for the award of entitlement to TDIU. The Board finds that the Veteran’s service connected PTSD and/or tinnitus did not render him unable to secure and follow a substantially gainful occupation prior to the current effective date of April 6, 2016. As noted in the Introduction, by an August 2016 rating decision, the RO awarded entitlement to TDIU and assigned an effective date of April 6, 2016. The RO based its award of a TDIU rating on an April 6, 2016 VA PTSD examination report. This report contains the VA examiner’s opinion that the Veteran’s PTSD had rendered him unable to maintain full-time sedentary and physical employment from that date. (See April 2016 VA PTSD examination report). The Veteran asserts entitlement to an effective date prior to April 6, 2016 for the grant of a TDIU rating, but has not provided any specific arguments or assertions regarding what he believes to be the correct effective date for the grant of a TDIU rating. In this case, the Veteran initiated his formal claim for TDIU with the filing of the May 2014 VA Form 21-8940. (See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received by VA in May 2014). However, the underlying TDIU claim is part and parcel of the Veteran’s claim for an increased rating for PTSD, as identified in the formal claim for an increased rating for his PTSD in October 2014. (See VA Form 21-526 EZ, Fully Developed Claim (Compensation) received by VA on May 2, 2014)). Thus, the earliest possible effective date for the Veteran’s TDIU claim is the date of his underlying claim for an increased rating for PTSD. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran has not argued, and the evidence of record does not indicate, that there exists an earlier claim for an increased rating for PTSD. See 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018). Moreover, the evidence of record indicates that the Veteran sustained, full-time employment as a computer information technology specialist and “professional” from December 16, 2013 to May 4, 2014; August 8, 2014 to September 5, 2014; and, August 10, 2015 to October 21, 2015, and that he had earned $44.23 an hour (from December 16,2013 to May 4, 2014) and $3,327.31 from August 10, 2015 to October 21, 2015. In the absence of any evidence or argument suggesting either that the Veteran’s earned annual income ever failed to exceed the poverty threshold or that his actual employment was otherwise marginal in nature, the Board finds that the preponderance of the evidence shows that Veteran was able to maintain substantially gainful employment from 2013 to 2015. See 38 C.F.R. § 4.16; Moore, 1 Vet. App. 356. In addition, VA treatment reports, dated in late February and early May 2016, pertinently reflect that the Veteran was actively seeking employment, and that he had last worked in October 2015, but that he had stopped secondary to non-service-connected gastrointestinal issues. (See VA treatment reports, dated February 25, 2016 and May 18, 2016, labeled as “CAPRI” and received into the Veteran’s Legacy Content Manager Document (LCMD) electronic record on March 16, 2016 and August 1, 2016, respectively)). The Board emphasizes that, as a matter of law, a TDIU cannot be granted for a period during which the evidence establishes that a veteran is gainfully employed on a full-time basis. See Sabonis, 6 Vet. App. 426; 38 C.F.R. § 4.16 (b). Although the Veteran’s service-connected PTSD certainly affected his employability prior to April 6, 2016, the preponderance of the evidence of record shows that he was nevertheless able to maintain substantially gainful employment during the period from 2013 to 2015, and was actively looking for employment through mid-May 2016. Thus, the evidence fails to establish that the Veteran’s service-connected PTSD and/or tinnitus has precluded him from securing or following a substantially gainful occupation prior to April 6, 2016. Accordingly, the benefit-of-the-doubt rule does not apply, and entitlement to an effective date prior to April 6, 2016 for the award of a TDIU is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel