Citation Nr: 18155580 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-00 107A DATE: December 4, 2018 ORDER Entitlement to an effective date of October 15, 2009 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The evidence is sufficient to show that from October 15, 2009, the Veteran’s service-connected PTSD made her unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an effective date effective date of October 15, 2009 for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from November 1980 to March 1981 and December 1990 to July 1991. 1. Entitlement to an effective date of October 15, 2009 for the grant of entitlement to TDIU. Generally, the effective date of an award of disability compensation based on an original claim shall 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. If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Unless specifically provided, the effective date will be assigned based on the facts as found. 38 C.F.R. § 3.400(a). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation due to service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. In determining whether an appellant is entitled to a TDIU, the Veteran’s non-service-connected disabilities and advancing age may not be considered. 38 C.F.R. § 4.19. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A July 2014 rating decision granted TDIU effective October 22, 2013. The Veteran asserts that an earlier effective date is warranted. The Veteran, through her representative, asserts that the effective date for TDIU should be no later than March 10, 2008. See November 2018 Appellant Brief. From March 10, 2008, the Veteran was service-connected for PTSD evaluated as 50 percent disabling. The Veteran did not meet the schedular criteria for TDIU. From October 15, 2009, the Veteran was service connected for PTSD evaluated as 70 percent disabling. The Veteran met the schedular requirements for PTSD. The Board must consider if referral for extraschedular consideration is warranted prior to October 15, 2009 and whether the Veteran was unable to secure and follow a substantially gainful occupation due to her PTSD from October 15, 2009. A June 2005 VA treatment record indicates the Veteran worked as a material handler. A September 2006 VA treatment record indicates the Veteran reported she was working at Camp Lejeune and now takes care of her mother and is paid through a home health agency. During an October 2007 VA examination, the Veteran reported that since leaving service she worked has a home health aide for 2 years. She worked in a warehouse for 7 years. She reported good relationships with her supervisors and coworkers. She worked in food service for the military for 10 years. In a March 2008 letter, Dr. E.W.H. indicated that after service the Veteran worked in the shipping department of the retail warehouse at the Marine Corp Exchange for seven years. Dr. E.W.H. further reported the Veteran has been the primary caregiver for her mother since 2005 but is otherwise unemployed. Dr. E.H.W. reported the Veteran has nightmares at least three to four times a week and panic attacks two to three times a week. She averages only three to four hours of sleep per night. Her recent memory is moderately impaired, so she cannot remember what she reads. Her working memory is 75 percent impaired. She reported hallucinations. She reported feeling depressed 75 percent of the time with no energy and little interest in things. Dr. E.W.H. concluded that, “Because of the Veteran’s service-connected PTSD she is moderately compromised in her ability to sustain social relationships but she is unable to sustain work relationships. Therefore, I consider her permanently and totally disabled and unemployable.” During a May 2008 VA psychological evaluation report indicates that there had been no major changes in the Veteran’s daily activities since she developed her mental condition. She reported some social function changes including being avoidance. She reported working as her mother’s paid caretaker. She reported a good relationship with her supervisor and co-workers. She further reported that while performing this job she has not lost any time from work. The examiner noted that the Veteran’s concentration was not good and her attention span is short. Panic attacks occur more than once a week. She reported intermittent delusions and hallucinations. The examiner concluded that the Veteran is unable to establish and maintain effective work, school, or social relationships because she avoids contacts with people other than her mother. The examiner noted the use of tricyclics and antipsychotics may help some, but the Veteran is probably permanently disabled. A November 2009 VA psychological examination report indicates the Veteran reported that she had not worked for 7 months because she quit due to a conflict with her peers. She reported being employed as a home health aide for 4 years. She felt she could not get along with others. The examiner noted that the Veteran has difficulty establishing and maintaining effective work, school, and social relationships because her irritability and anergia prevent social network development. She rarely leaves home. She can maintain effective family role functioning. She has intermittent inability to perform recreation or leisurely pursuits because she has no interests other than gardening. She had occasional interference with physical health because of her recent diagnosis of hypertension. A February 2010 VA Form 21-8940 indicates the Veteran last worked in February 2009. She reported her highest level of education was a high school diploma. During a March 2010 VA examination, the Veteran reported difficulty sleeping. She indicated she feels tired all the time and sleeps during the day. She reported feeling sad all the time and has lost motivation to do things. She reported she used to enjoy air shows, watching movies, and playing softball and basketball but she no longer does so. She reported difficulty concentrating; her mind wanders and she is easily distracted. She reported she will not leave the house unless she must. She no longer socializes and reported avoiding people because she does not trust them. The Veteran reported that she currently is not working and has not worked for 1 year because she is mentally incapable of working. She reported being employed caring for her mother for 4 years. She reported leaving her retail warehouse at Camp Lejeune because she could not cope with the stress of the job. She reported leaving the job and was then paid through an agency to care for her mother. Regarding functional impact the examiner noted that the Veteran’s sleep disturbance causes her to be tired all day, and her diurnal rhythm has been disrupted, which would greatly hamper her ability to function and maintain a work schedule. She also has difficulty concentrating and maintaining focus and her depressive symptoms decrease her motivation. Her irritability, avoidance of others, and intolerance of others limit her ability to relate to other people at work. The examiner concluded that if her sleep disturbance and depression can be managed with medication, she might be able to work in a job setting in which she does not have to interact with others or perform highly skilled tasks. On a June 2011 VA Form 21-8940, the examiner reported that she was last employed by Continuum Home Care and Hospice (Continuum) until February 2009. An October 2012 correspondence from Continuum indicates the Veteran was employed as a certified nursing assistant. The employer indicated that the Veteran was taking care of her mother who was a patient at the facility and the Veteran resigned due to her mother passing. Regarding the period prior to October 15, 2009, the Board finds that referral for extraschedular consideration is not warranted. The evidence shows the Veteran was gainfully employed until February 2009 and indicates that she resigned from position as a home health aide once her mother passed away. Furthermore, the medical opinions of record indicating that the Veteran’s PTSD rendered her unable to work prior to October 2009 are afforded limited probative value given that the Veteran was indeed gainfully employed up until February 2009. Thus, referral for extraschedular consideration is not warranted. From October 15, 2009, the evidence shows a worsening in the Veteran’s PTSD symptoms. The November 2009 and March 2010 indicates that the Veteran’s PTSD symptoms caused severe lack of motivation and inability to function in social or work settings. The Veteran avoided social interactions and restricted herself mostly to her home. Thus, the evidence is sufficient to show that from October 15, 2009, the Veteran was unable to obtain and maintain substantially gainful employment. (Continued on the next page)   In addition, as previously noted, the effective date of an award of disability compensation based on an original claim generally shall 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. Here, the Board finds that the evidence is sufficient to show that the Veteran was unable to obtain and maintain substantially gainful employment due to her service-connected PTSD when she filed her increased rating claim for PTSD on October 15, 2009. As her TDIU claim was raised by the record, TDIU is granted effective October 15, 2009. See Rice, 22 Vet. App. 447 (2009), R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel