Citation Nr: 1806822 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-01 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date prior to October 22, 2010, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from March 1969 to November 1971, including service in the Republic of Vietnam. He is the recipient of the Army Commendation Medal, the Vietnam Service Medal with two stars, and the Vietnam Campaign Medal with 60 device. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issue of entitlement to an effective date prior to November 25, 2011, for the award of TDIU was remanded by the Board in June 2017. An August 2017 rating decision granted an effective date of September 8, 2011, for the award of TDIU; and an October 2017 rating decision assigned an earlier effective date of October 22, 2010, for same. A Supplemental Statement of the Case (SSOC) was issued in October 2017. FINDING OF FACT The evidence establishes that the appellant was gainfully employed on a full-time basis through October 21, 2010, and was not unable to secure or follow a substantially gainful occupation prior to October 22, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than October 22, 2010, for the award of TDIU have not been met. 38 U.S.C. § 5101, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). 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 application is received within one year from such date. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). A TDIU claim is a claim for increased compensation; thus, the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected 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. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Analysis Prior to June 29, 2010, service connection was in effect for posttraumatic stress disorder (PTSD) only. Such was rated at 50 percent. Beginning June 29, 2010, service connection was in effect for PTSD at 50 percent and for peripheral neuropathy of the bilateral lower extremities, each rated at 40 percent disabling. The appellant's combined evaluation for compensation was 90 percent. Thus, he meets the schedular criteria for TDIU beginning June 29, 2010. 38 C.F.R. § 4.16(a). The appellant contends that he is entitled to an effective date earlier than October 22, 2010, for the grant of his claim of entitlement to TDIU. Based on the evidence of record, however, the Board finds that the currently-assigned effective date of October 22, 2010, for the award of TDIU under 38 C.F.R. § 4.16 is the appropriate effective date in this case because his employment prior to such date was substantially gainful. The preponderance of the evidence establishes that the appellant was not unable to secure or follow a substantially gainful occupation prior to October 22, 2010. As noted above, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). An exception to that rule is provided for in section 5110(b)(2). Under that provision, an effective date of an award of increased compensation may be assigned from the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); Quarles, 3 Vet. App. at 135. Stated another way, three possible effective dates may be assigned pursuant to this provision, depending on the facts of the case. First, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 521 (1997); see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). On June 29, 2010, the appellant submitted a VA Form 21-8940. The evidence does not show, nor does the appellant contend, that he filed an earlier claim for TDIU, either independently or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As discussed below, at the time of receipt of his application, the record showed that the appellant had been gainfully employed as night manager since August 2003, more than one year prior to receipt of his claim. There is no indication, nor has the appellant contended that his employment was marginal, in a protected environment or sheltered workshop, or otherwise not substantially gainful. Thus, the Board concludes that it is not factually ascertainable from the record that the appellant became unable to secure or follow substantially gainful employment as a result of his service-connected disabilities in the year prior to receipt of the June 29, 2009, TDIU claim and the appellant has pointed to no such evidence. Thus, assignment of an effective date of the date of receipt of the TDIU claim or up to one year prior, under 38 C.F.R. § 3.400(o)(2), is not warranted. Thus, the Board will analyze whether the date entitlement to TDIU arose was prior to October 22, 2010. 38 C.F.R. § 3.400(o)(1). It is undisputed that the appellant's last day of work was October 21, 2010. Again, there is no indication that the appellant's work prior to that time was not substantially gainful. In argument received in September 2016, the appellant's attorney argued that the appellant is entitled to an effective date of October 22, 2010, for the award of TDIU because his last date of employment was October 21, 2010. Therefore, it appears that the appellant and his attorney are, in fact, in agreement with the effective date currently assigned for the award of TDIU. However, the attorney had previously argued, in correspondence received in March 2015, that the appellant's employment prior to October 22, 2010, was not substantially gainful because the appellant's former employer reportedly determined that the appellant was no longer able to effectively perform his duties and it was thus time for him to retire. That the appellant retired in October 22, 2010, however, is not a basis upon which to conclude that his prior employment was not substantially gainful. The Board notes that the appellant's attorney submitted an October 2013 Social Security Earnings and Wage Statement which showed that the appellant had $8,910 of taxed Social Security earnings in 2010, which the attorney stated was "well below the poverty threshold." However, as observed by the attorney, the appellant did not work for the entire year in 2010. Rather, he did not work after October 21, 2010. As finder of fact, the Board may interpret financial information of record. As such, it will be considered in the evaluation of the appellant's claim. The Social Security Earnings and Wage Statement is not a definitive measure of total earnings, as it appears from the record that the appellant was also contributing to a 401k, which would likely have reduced his countable income. Regardless, even assuming for the sake of argument that the $8,910 reported represented the entirety of the Veteran's earned income from January 1, 2010, through October 21, 2010, approximately nine and two-thirds months and even assuming that amount was projected for 12 months, such would total approximately $11,060, just under the United States Census Bureau poverty threshold for one person under 65 years of age, $11,344. See Poverty Thresholds, United States Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Jan. 9, 2018). During a December 2009 VA psychological examination, the appellant reported that he worked 16 hours every three nights as a night manager at a homeless shelter, although his foot problems were interfering with his ability to work. A March 2010 clinical note indicates that the appellant lived in a different state than the homeless shelter and had to drive to work at such shelter. A VA Form 21-8940 was received in June 2010. The appellant stated that his PTSD, depression, and peripheral neuropathy precluded him from securing or following any substantially gainful occupation. He stated that his disability affected full-time employment four years prior and that he worked 32 hours per week. He stated that he had two years of college education. Copies of the appellant's 2008 and 2009 income tax returns, and a copy of a June 17, 2010, pay stub, were submitted by the appellant and his attorney in conjunction with such VA Form 21-8940. Such information was voluntarily provided directly by the appellant and his attorney. The Board observes that the total income reported in 2008 was $10,514, slightly below the applicable 2008 poverty level of $11,201, and that the total income reported in 2009 was $19,212, well above the applicable 2009 poverty level of $11,161. Id. A September 2010 VA examination report for peripheral nerves states that the appellant currently worked full-time at a homeless shelter. He had lost 10 to 12 weeks in the past 12 months due to foot pain. He was noted to be retiring soon, due to an inability to stand and walk for 16-hour shifts. A letter from the appellant's employer was received in February 2011. It explained that the appellant worked as a night manager from August 2003 until October 21, 2010. He performed 16-hour shifts when on duty. He took an early retirement due to pressures of the job. It was explained that the homeless shelter was an emergency and transitional housing facility for homeless men. Thus, difficult situations would often arise due to the clientele. Although the appellant tried to perform his job properly, his PTSD, and other mental and emotional issues, came into play. It was determined that, for his well-being and for the proper operation of the facility, the appellant should retire. Forms 21-8940 were received in February 2011 and March 2011. The appellant reported that he was unable to secure or follow a substantially gainful occupation due to PTSD and depression. He stated that his disability affected full-time employment, he last worked full-time, and became too disabled to work on October 21, 2010. He stated that he worked 48 hours per week from August 2003 until October 21, 2010. His highest gross earnings per month were $920. He lost approximately 15 to 20 days per year due to illness. His total earned income for the past 12 months was $7,484.40. He had to leave his last job due to his disability and had not tried to obtain employment since. He had two years of college education. He stated that pressures, frustrations, self-control, PTSD, depression, and other mental and emotional factors prevented him from doing his job properly. In a Statement in Support of Claim received in March 2011, the appellant explained that he worked at a men's homeless shelter, as a night manager. He performed a 16-hour shift every third night. He earned $460 every two weeks. Due to pressures and frustrations caused by his service-connected difficulties, the executive director determined that he needed to take an early retirement on October 21, 2010, for his own well-being and that of the establishment. He explained that he became homeless in May 2001 and the shelter brought him on as a worker in the kitchen in exchange for food, clothing, shelter, and assistance in getting mental health treatment from VA. He was eventually hired as a staff member in 2003, when he became the night manager. The appellant explained that he could not continue to properly perform his job due to issues with PTSD, depression, and self-control. Thus, it was determined that he should retire. The Board observes that biweekly pay of $460 equates to $11,960 for one year, which is greater than the applicable 2010 poverty threshold. Id. A VA Form 21-4192 was received in April 2011. The appellant reported that he worked as a night manager from August 2003 to October 21, 2010. He earned $12,360 in the 12 months preceding his last date of employment. He lost 176 hours in those 12 months due to disability. He worked 40 hours per week. He stated that he retired for personal health reasons. Concessions by reason or age or disability included additional personnel assigned to assist when and where necessary. A February 2012 clinical note states that the appellant reported that he was asked to retire in October 2010 by his employer due to increasing irritability, impulsivity, and volatility. During a February 2012 VA examination, the appellant stated that he was asked to retire because his employer believed it was getting harder for the appellant to perform his duties. He reported that he was more irritable and less tolerant. The appellant reported, including in November 2011 and October 2012, that it was his employer who determined that he needed to retire and that he did not retire willingly. He stated that there was two months' notice of such retirement in order to allow the shelter to find a replacement for his position. The Board observes that the appellant reported widely varying income totals for the final 12 months he worked. The appellant reported that he earned $12,360 in the 12 months preceding his last date of employment on his April 2011 VA Form 21-4192, while he reported earning just $7,484.40 during such period on Forms 21-8940 received in February and March 2011. However, on such forms, he also stated that his gross earnings per month were $920. 12 months of earning $920 a month equates to $11,040 in one year. The Board observes that $12,360 is greater than the 2010 poverty threshold of $11,344, discussed above, as well as the provided total of $7,484.40 for the last 12 months of work. See id. The Board finds that the April 2011 VA Form 21-4192 report of the total income earned in the 12 months prior to October 22, 2012, $12,360, is entitled to greater probative weight than the reported income earned during such period on the February and March 2011 Forms 21-8940 of $7,484.40, including because the April 2011 report such was received after the Forms 21-8940 and can be reasonably read as a correction to such earlier reports. The appellant's attorney stated that the appellant had $8,910 in taxed Social Security earnings in 2010 and that the appellant did not work after October 21, 2010. As the final 12 months that the appellant worked ended on October 21, 2010, such 12-month period must begin in October 2009. Thus, because the appellant earned $8,910 from January 1, 2010, through October 21, 2010, he cannot have earned less than $8,910 between October 2009 and October 21, 2010. Further, based upon the appellant's March 2011 report that he earned $460 biweekly, his annual income would be greater than the 2010 poverty threshold, as discussed above. Although the appellant initially worked at the homeless shelter in exchange for room and board, the record indicates that his position as night manager was for a wage and not for room and board. Rather, a March 2010 clinical note indicates that the appellant did not reside at the homeless shelter. Indeed, he had to commute from out of state to work there. He had held the night manager position since 2003. Thus, such employment was not in a protected environment. The appellant and his attorney do not contend otherwise. Additionally, the appellant's self-reported biweekly $460 earnings for full-time work equate to an annual total above the poverty line, as discussed above. His February 2011 report of income for the final 12 months he worked also is greater than the applicable poverty line. Thus, such employment as night manager was not marginal. The Board finds that the preponderance of the evidence is in favor of the appellant's job as night manager being substantially gainful. Thus, as his last day of employment as night manager was October 21, 2010, he was not unable to secure or follow substantially gainful employment prior to October 22, 2010. The Board observes that, even on the February and March 2011 Forms 21-8940, the appellant himself stated that his disability affected full-time employment beginning October 21, 2010, and he became too disabled to work on October 21, 2010, his last day of work at the shelter. In light of the facts above, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than October 22, 2010. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an effective date prior to October 22, 2010, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs