Citation Nr: 18155277 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 13-03 327 DATE: December 4, 2018 ORDER A rating in excess of 70 percent for an acquired psychiatric disorder to include major depression, posttraumatic stress disorder (PTSD), and anxiety disorder, is denied. An effective date prior to November 5, 2009 for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder, is denied. An effective date prior to October 20, 2011 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Board by its March 2018 decision, affording the Veteran the benefit of the doubt, granted a 70 percent rating for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder, while leaving open the possibility of disturbing that decision if evidence were received following its remand to warrant an earlier effective date for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder. Following upon the March 2018 Board remand, evidence was not received supporting an earlier effective date for service connection, and the Board accordingly does not herein grant an earlier effective date for service connection. 2. The Veteran first submitted a claim for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder on November 5, 2009. 3. The weight of the evidence is against the Veteran’s service-connected disabilities causing him to be incapable of obtaining or retaining substantially gainful employment consistent with his education, training, and work experience prior to October 20, 2011. CONCLUSIONS OF LAW 1. A change in the March 2018 Board decision granting a 70 percent rating for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an effective date earlier than November 5, 2009, for entitlement to service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. The requirements to establish an effective date prior to October 20, 2011 for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1969. The Department of Veterans Affairs (VA) is grateful for his service. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was remanded by the Board in March 2018 as inextricably intertwined with other issues then remanded by the Board. Subsequent to that remand, the Department of Veterans Affairs Regional Office (RO) by an October 2018 decision granted TDIU effective from October 20, 2011. Because issues for consideration of increased rating the subject of appeal arose prior to that date, the Board must consider whether an earlier effective date for TDIU is warranted. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009) (when entitlement to TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability or disabilities, it is a part of the claim benefits for that disability or disabilities). Including as discussed below, the Board is satisfied that the development requested by the Board’s March 2018 remand has been substantially completed. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D’Aries v. Peake, 22 Vet. App. 97 (2008). 1. Whether Board rating of March 2018 granting a 70 percent rating for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder remains undisturbed. The Board in its March 2018 decision afforded the Veteran the benefit of the doubt and granted a 70 percent rating based on applicable rating criteria for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. However, the Board then remanded the case based on the possibility of an earlier effect date for service connection for that disability, recognizing that if such earlier effective date were warranted other evidence would be potentially relevant to the increased rating claim then adjudicated by the Board, and more crucially, the appropriate rating for the earlier claim interval would need to be considered. The Board’s decision granting the 70 percent rating was thus then recognized by the Board as non-final, pending a determination as to whether an earlier effective date for service connection was warranted. Because the Board herein determines that there is no basis for an earlier effective date for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder, the Board leaves undisturbed its March 2018 decision affording the Veteran the benefit of the doubt and granting a 70 percent rating for PTSD. 2. Claim of entitlement to an earlier effective date than November 5, 2009, for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder. The effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2). The Veteran’s claim for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder was not received within one year of his service separation in October 1969. The Department of Veterans Affairs Regional Office (RO) granted the Veteran service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder, effective November 5, 2009, which was the date of receipt of claim for that benefit. No prior formal or informal claim for that benefit is of record. The Board in March 2018 remanded the claim based on the question of whether there was an earlier submission and hence an earlier claim, because a VA memorandum addressing the claim was observed to contain a date of April 14, 2009, which is earlier than the November 5, 2009 date of receipt of claim. The Board accordingly sought clarification from the RO. The RO reviewed relevant internal system records and determined that the employee who completed that memorandum had been assigned to the case on March 8, 2010, and had completed the memorandum on the same date. The RO further determined that the date of April 14, 2009 was a date corresponding to the template for the memorandum, and hence April 14, 2009 in no way pertained to the Veteran’s claim or development of the claim. Hence, the April 14, 2009 date not being reflective of VA work on the claim prior to the November 5, 2009 date of receipt of claim, no basis was discovered by the remand development for an earlier effective date for service connection for an acquired psychiatric disorder to include major depression, PTSD, and anxiety disorder. Accordingly, an effective date earlier than the date of receipt of claim of November 5, 2009, is not warranted, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Claim of entitlement to an earlier effective date for the grant of TDIU than October 20, 2011. A claim for a TDIU is in essence a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). For increased disability compensation, the effective date shall be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year of such date; otherwise, the date of receipt of the claim. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (o)(2) (2017). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. 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. Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for a TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." The Veteran’s service-connected disabilities include the following: psychiatric disability rated 70% disabling from November 5, 2009; left upper extremity peripheral neuropathy, rated 40% from October 20, 2011; right upper extremity peripheral neuropathy, rated 30% from October 20, 2011; right lower extremity peripheral neuropathy, rated 20% from October 20, 2011; bilateral hearing loss, rated 0% from October 13, 2009, 10% from July 19, 2013, and 40% from June 6, 2016; peripheral vestibular disorder, rated 30% from July 18, 2013; and bilateral tinnitus, rated 10% from November 17, 2011. These resulted in a combined rating, pursuant to application of the combined rating table with applicable bilateral factors, of 0% from October 13, 2009; 70% from November 5, 2009; 90% from October 20, 2011; and 100% from November 17, 2011. See 38 C.F.R. § 4.25 (2017). Thus, the Veteran was eligible for consideration of TDIU on a schedular basis from November 5, 2009. However, as the Veteran informed in his application for TDIU submitted in June 2017, he was employed in the transportation field performing office work 40 hours per week up until July 2010, with a highest gross salary of $2,880.00 monthly. Thus, he was substantially gainfully employed prior to the date of his July 2010 retirement. The Veteran submitted a claim for service connection bilateral hearing loss on October 13, 2009. He submitted a claim for service connection for a psychiatric disability on November 5, 2009. He submitted claims for service connection for tinnitus and for peripheral neuropathy in the lower extremities on November 17, 2011. He submitted a claim for service connection for a vestibular disorder on July 18, 2013. A VA audiology examination in January 2010 revealed moderately severe sloping to severe mixed hearing loss in the right ear and moderately severe sensorineural hearing loss in the left ear, but with speech recognition scores of 94% in each ear. The examiner assessed that the Veteran would likely have difficulty understanding speech in the presence of background noise. At March 2012 VA psychiatric examination, the examiner noted the Veteran’s report that he was last employed two years ago, that he had ceased working due to physical limitations, and that he had retired early to obtain income. The examiner found that the Veteran suffered from an anxiety disorder, a depressive disorder, and alcohol abuse in partial remission. The examiner assessed that the Veteran’s psychiatric disabilities resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported at that examination that he had worked for 40 years in the transportation field with only about six of those years as a truck driver, with some recent work also in training and administration. The Veteran reported getting along well with customers but not with those under him due to disciplinary issues and difficulty if others do not see things his way. However, the Veteran denied difficulty staying employed since service. He reported having significant difficulties with leg pain and balance issues, and ceasing work and retiring due to physical limitations. In short, the Veteran’s treatment and examination records reflect that physical limitations including peripheral neuropathy, bilateral hearing loss, and vestibular disorder for which the Veteran is service connected, substantially contributed to his ceasing work in July 2010. The record does not reflect that his service-connected psychiatric disability played a significant role in his ceasing employment or in his remaining unemployed, and does not reflect that his psychiatric disability and hearing difficulties alone would have precluded his continuing his employment or seeking or retaining other gainful employment. To the contrary, a more recent submission by the Veteran informs that he attained status as a nominally paid elected official in his local community, strongly suggesting absence of significant social or occupational impairment associated with psychiatric disability or hearing loss, which is consistent with findings of the March 2012 VA examiner and the Veteran’s own statements at that examination. While service-connected physical disabilities including in particular peripheral neuropathies in the upper and lower extremities and vestibular disorder likely had a significant role in his ceasing employment in July 2010, the Veteran was not service connected for these peripheral neuropathies until October 20, 2011, and he was not service connection for vestibular disorder until July 18, 2013. These effective dates for service connection for these disorders are not the subject of appeal and are not before the Board for review. There is no indication that the Veteran’s education, training, or experience, or lack thereof, played any role in his ceasing to be employed in July 2010 or in his not obtaining employment thereafter. Rather, the weight of the evidence including medical findings and the Veteran’s own statements inform that the already noted physical limitations were determinative of his employment status. Hence, based on applicable effective dates for service-connected disabilities, the Board finds that the preponderance of the evidence is against the Veteran being incapable of obtaining or retaining substantially gainful employment due to service-connected disabilities prior to October 20, 2011, the effective date of service-connected for his peripheral neuropathies of the left and right upper extremities and right lower extremity. 38 U.S.C. § 5110 38 C.F.R. §§ 3.340 (a)(1), 3.400 (o)(2), 4.15, 4.16. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter