Citation Nr: 18160168 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-44 163 DATE: December 26, 2018 ORDER An effective date of October 24, 2014, for the Veteran’s total disability rating due to individual unemployability (TDIU) is granted. REMANDED The claim of entitlement to a rating higher than 50 percent prior to January 22, 2015, and higher than 70 percent thereafter, for PTSD is remanded. The claim of entitlement to a rating higher than 30 percent for bronchial asthma prior to October 20, 2015, is remanded. The claim of entitlement to a rating higher than 50 percent for sleep apnea syndrome secondary to PTSD and bronchial asthma starting from October 20, 2015, is remanded. The claim of entitlement to an effective date earlier than October 20, 2015, for the grant of service connection for sleep apnea syndrome is remanded. The claim of entitlement to an effective date earlier than October 20, 2015, for the grant of special monthly compensation at the housebound level is remanded. FINDING OF FACT The Veteran’s PTSD has caused him to be unemployable since October 24, 2014. CONCLUSION OF LAW The criteria are met for the assignment of an effective date of October 24, 2014, for the grant of his TDIU. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to August 1991 and from July 1992 to August 1994. The question of whether there was CUE in all decisions prior to October 26, 2004, as set forth in an August 2017 motion, is referred. The Board does not currently have jurisdiction of this issue. An effective date of October 24, 2014, for the Veteran’s total disability rating due to individual unemployability (TDIU) is granted. In general, the effective date for an increased rating of an already service-connected disability (as opposed to a newly service-connected disability) is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, if it is factually ascertainable that an increase had occurred within the year prior to receipt of the claim, the effective date may be assigned on the date that it was ascertainable. 38 C.F.R. § 3.400(o)(2). A TDIU will be awarded when the evidence shows that the Veteran is precluded, because of his service-connected disability, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to be eligible for a TDIU, in cases where the veteran has two or more service connected disabilities, as here, then 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. Id. In this case, the Veteran has met the eligibility requirements since May 2005, the effective date of his 50 percent rating for PTSD, and his combined rating of 90 percent. The Veteran’s claim for a TDIU was received in January 2015. The RO assigned an effective date of May 16, 2015, for the Veteran’s TDIU, which is the day after his last day of employment, as reported by the Veteran’s last employer. The RO based the Veteran’s TDIU solely on his PTSD. The Board notes the employer reported that the Veteran’s last day of work was October 23, 2014, and that he used sick time and disability leave between his last day of work and his last day of employment. The Veteran also reported that he stopped working in October 2014. The record does not otherwise show that he continued to work until May 2015. Accordingly, because the Veteran was precluded from working—and actually ceased working—because of his service-connected PTSD six months earlier than May 2015, the effective date of his TDIU is more appropriately October 24, 2014, the day after his last day of work. It is factually ascertainable that he stopped working at that time. 38 C.F.R. § 3.400(o)(2). He may have been employed up until May 2015, but he was not actually working until then; rather, his employment status was continued so that he could take advantage of the employment benefits that he had earned during his 13 years of employment, including sick time and disability time. The mere receipt of a paycheck does not preclude a finding of unemployability, particularly under these circumstances. As this decision grants the date of entitlement based on the date the Veteran stopped working, and the evidence reflects gainful employment prior to that date, the Board finds that it may assign this date without awaiting the final adjudication of the other claims in appellate status. REASONS FOR REMAND 1. The claim of entitlement to a rating higher than 50 percent prior to January 22, 2015, and higher than 70 percent thereafter, for PTSD is remanded. The Veteran has not had an examination for this disability since August 2015. A review of the record suggests an increase in severity in his symptoms. See VA treatment record dated April 2018. Accordingly, an updated VA examination must be scheduled. 2. The claim of entitlement to a rating higher than 30 percent for bronchial asthma prior to October 20, 2015, is remanded. The Board notes that bronchial asthma and sleep apnea are rated as one disability under 38 C.F.R. § 4.96(a). The Veteran has filed a timely appeal for an earlier effective date for his sleep apnea syndrome, which must be remanded (as discussed below), and which is inextricably intertwined with this claim for a higher rating for asthma. See also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). That is, if his sleep apnea is assigned an earlier effective date, the rating for prior October 20, 2015, is directly impacted. 3. The claim of entitlement to a rating higher than 50 percent for sleep apnea syndrome secondary to PTSD and bronchial asthma starting from October 20, 2015, is remanded. The Veteran has not been examined for either his asthma or sleep apnea since April 2015. An updated examination must be conducted for each disability for a determination as to which is predominant, and their respective severity. 4. The claim of entitlement to an effective date earlier than October 20, 2015, for the grant of service connection for sleep apnea syndrome is remanded. 5. The claim of entitlement to an effective date earlier than October 20, 2015, for the grant of special monthly compensation (SMC) at the housebound level is remanded. In August 2017, the Veteran filed a timely notice of disagreement to the effective date assigned for his sleep apnea and for his SMC at the housebound level, which were set forth in the June 2017 rating decision. These issues have not been addressed in a statement of the case, and are being remanded for that purpose. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Issue a statement of the case (SOC) to the Veteran, with a copy to his representative, addressing the Veteran’s appeal for an earlier effective date for the grant of service connection for sleep apnea syndrome, and for an earlier effective date for the grant of SMC at the housebound level. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 38 C.F.R. § 20.302(b). 2. Simultaneously with directive 1, schedule an appropriate examination for a report on the current severity of the Veteran’s PTSD. The examiner is asked to provide an opinion on whether his PTSD causes total social and occupational impairment, and if so, to provide an approximate date as to when the increase occurred. 3. Simultaneously with directive 1, schedule the Veteran for an appropriate examination of his asthma and sleep apnea for a report on their respective severity. The examiner is asked to conduct a thorough examination, including pulmonary function testing. The examiner is asked whether the Veteran’s FEV-1 is 40- to 55-percent predicted, or less; or, his FEV-1/FVC is 40 to 55 percent, or less; or, does the Veteran require at least monthly visits to a physician for required care of exacerbations; or, has he had at least three courses of systemic (oral or parenteral) corticosteroids in the past year; or, more than one attack per week with episodes of respiratory failure; or, does the Veteran require daily use of systemic high dose corticosteroids or immuno-suppressive medications. The examiner is asked to comment on the Veteran’s prescriptions and address whether they are corticosteroids or immuno-suppressive medications. Finally, the examiner is asked whether the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, whether he requires a tracheostomy. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson