Citation Nr: 20002967 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-29 588 DATE: January 14, 2020 ORDER Entitlement to an effective date earlier than September 16, 2008 for a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected PTSD prior to September 16, 2008. CONCLUSION OF LAW The criteria for an effective date earlier that September 16, 2008 for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400; 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1965 to September 1974. The Veteran also had periods of active service in the United States Army Reserve from February 1993 to November 2007. In July 2019, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for partial remand (JMPR), vacating and remanding that part of the Board’s August 2018 decision that denied an effective date earlier than September 16, 2008 for a TDIU due to service-connected disabilities. In pertinent part, the JMPR noted that the Board erred in failing to provide any analysis or discussion for an effective date earlier than September 16, 2008 for the award of a TDIU. Specifically, the Board failed to provide any analysis as to an earlier effective date for TDIU for the period when the Veteran’s service-connected PTSD was rated as less than total, and when he was therefore eligible for consideration of a TDIU under 38 C.F.R. § 4.16(a). As such, the matter was remanded for the Board to adequately address the proper effective date for the grant of a TDIU. In September 2019, the Veteran’s attorney submitted a notice of disagreement with a September 2018 rating decision, in which he indicated the Veteran seeks an effective date earlier than September 16, 2008 for the award of a TDIU due to service-connected PTSD, to include an effective date earlier than September 16, 2008 for the ancillary benefit of Dependents Educational Assistance (DEA). 38 C.F.R. § 3.155(d)(2). The Board notes that the issue of entitlement to an effective date earlier than September 16, 2008 for the award of a TDIU was the subject of the July 2019 JMPR, and is before the Board as a result of the July 2019 JMPR. The Board adds that the July 2019 JMPR noted that the Veteran did not challenge that part of the August 2018 Board decision awarding an initial disability rating of 50 percent for PTSD, the disability rating of 70 percent for PTSD from July 3, 1989, or the disability rating of 100 percent from September 16, 2008. Therefore, the Veteran waived any appeal with respect to the staged rating assigned for PTSD, and those issues are no longer before the Board. The Board adds that additional evidence has been added to the claims file in the form of VA treatment records. Although these records document current treatment for PTSD, they are not pertinent to the issue remaining before the Board regarding the appropriate effective date for the Veteran’s TDIU award. As such, the Board will proceed with a decision. The Veteran seeks entitlement to a TDIU from August 5, 1983. See September 2019 correspondence from the Veteran’s attorney. The Board observes that the Veteran was granted an earlier effective date of August 5, 1983 for the award of service connection for PTSD with major depressive disorder and a history of alcohol abuse in a May 2013 Board decision. In an October 2013 rating decision, the Agency of Original Jurisdiction (AOJ) assigned an initial disability rating of 30 percent for PTSD, and a disability rating of 50 percent from July 3, 1989. The Veteran perfected his appeal of the evaluations assigned for PTSD in the October 2013 rating decision. See November 2013 notice of disagreement. Although the higher initial staged ratings that were awarded for PTSD in the August 2018 Board decision are no longer on appeal, the issue of entitlement to a TDIU became part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran’s attorney contends that the Veteran has been unable to maintain gainful employment from the date of service connection (August 5, 1983) for PTSD with major depressive disorder and a history of alcohol abuse. See September 2019 correspondence from the Veteran’s attorney. Under 38 C.F.R. § 4.16, Veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court of Appeals for Veterans Claims (Court) has held that the Veteran’s ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In reviewing the evidence of record, the Veteran filed an initial claim for entitlement to service connection for a mental health disorder received by VA on August 5, 1983. See August 1983 VA Form 21-526. The Board observes the Veteran did not indicate on the August 1983 VA Form 21-526, blocks 29 through 32, that he was too disabled to work. The Veteran was afforded a VA examination in May 1984. The Veteran reported that after his separation from active duty in September 1974 he worked as a security guard for two months, a physical education instructor for four or five years, and had most recently obtained employment as a security guard. The Veteran also reported that he was self-employed as a karate instructor. The Veteran reported he did not feel a need for further mental health treatment, except some supportive measures. The examiner opined that the Veteran had mild impairment, primarily social, due to symptoms of PTSD and alcohol abuse. In an application for compensation benefits received by VA in July 1989, the Veteran indicated that he was totally disabled. See July 1989 VA Form 21-526. However, the Veteran also indicated that he was currently self-employed as a song writer. In a July 1989 VA progress note, the provider noted that the Veteran had trouble obtaining and maintaining gainful employment. The Veteran sought VA outpatient counseling for anger management in August 1992, and was admitted to a VA medical center for six days. The discharge summary noted that the Veteran indicated he had difficulties and dissatisfaction with his supervisor at work. The Veteran reported he had started a new job three months ago as a maintenance worker. The Veteran reported that his supervisor was very difficult to work for and his supervisor did not treat him like a human being in terms of the demands placed on him and the abusive language directed at him. The Veteran reported that he would like to harm his supervisor as a means of teaching him a lesson and impress upon his supervisor that employees have a right to be treated with dignity. The Veteran was placed on assault status when he was admitted to the VA medical center in August 1992, but the provider noted the Veteran was not assaultive or a danger to others, and the Veteran’s assault status was discontinued. The Veteran was discharged after six days on his own insistence, with a suggested follow-up plan that the Veteran would arrange his own future appointments. See also August 1992 VA social work high risk screening profile (indicating Veteran did not need to be followed as a high-risk case). The Veteran enlisted in the United States Army Reserve in February 1993, and participated in multiple periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) for more than 14 years until he retired from the United States Army Reserve in November 2007. In March 2006 correspondence from Mr. A.J., a personal acquaintance of the Veteran as well as the recruiter that assisted the Veteran with his February 1993 enlistment in the United States Army Reserve, he reported the Veteran was a functioning member of society. Mr. A.J. noted that, although the Veteran was a functioning member of society, the Veteran was at times virtually unable to function, particularly around military holidays and remembrances. In March 2006 correspondence from Mr. S.G., he reported that he had known the Veteran for more than five years. Mr. S.G. stated that although jobs were difficult for the Veteran, the Veteran was very talented, hardworking, enthusiastic, and friendly. In March 2006 correspondence from Psychologist S.J.W., she reported that she had never treated the Veteran professionally, but was his friend and confidante since 1988. Dr. S.J.W. reported that the Veteran’s current spouse, whom he married in March 1999, was basically homebound and unable to care for herself due to illness. Dr. S.J.W. reported that the Veteran took full care of his spouse, and that he was an excellent husband, caretaker, and fine man. In March 2006 correspondence from the Veteran’s spouse, reportedly a counselor prior to becoming permanently disabled due to her illness, she reported the Veteran presented himself as an outgoing, pleasant, and entertaining individual. She also reported the Veteran was depressed at times, and would hibernate in the bedroom for a few days to a few months. In July 2006 correspondence from the Veteran’s private psychologist, Dr. P.L. reported the Veteran had always attempted to work despite having severe difficulty functioning. Dr. P.L. reported the Veteran’s symptoms due to PTSD had become worse since the war in Iraq began, and that the Veteran would be psychologically incapable of handling the stress of a deployment. In June 2007 correspondence from the Veteran, he reported he was unable to deal with Fourth of July celebrations, fireworks, news reports on war, combat movies, guns, or any type of violence. See also May 2008 VA Form 21-4138. The Veteran reported he had been able to make a living as a musician over the years, but would lose his ability to perform due to intoxication. In a December 2007 VA psychiatry note, the Veteran reported that problems due to depression made it somewhat difficult for him to work, take care of things at home, or get along with other people. In December 2007 correspondence from the Commander of the Veteran’s Reserve unit, the Commander reported he had been concerned with the Veteran’s physical and emotional well-being since taking command in 2006. The Commander reported that although the Veteran showed symptoms of PTSD, the Veteran’s leadership, skills, experience, and devotion to duty remained valuable to the unit and the United States Army Reserve. In an August 2008 VA psychology consult, the Veteran reported he finished high school but never attended college. The Veteran reported his employment history included work for Kinko’s, as a locksmith, and as a songwriter. The Veteran reported his last employment was in the late 1990’s after an altercation with his employer. However, based on the last employment (other than service in the Army Reserve) listed by the Veteran on the February 2010 VA Form 21-8940, that employer reported the reason for termination was that the Veteran’s position was eliminated. See February 2010 VA Form 21-4192 (also indicating the only concession made to the Veteran by reason of disability was that he could not perform during fireworks). In a September 16, 2008 VA examination, the Veteran reported he had recently retired from the United States Army Reserve, but had not worked any other job in over ten years. The examiner opined the Veteran’s poor concentration and extreme anxiety around people was so severe that he likely would not be able to function in a job, and that the Veteran would not be able to handle the accountability factors associated with gainful employment. In an August 2018 Board decision, an effective date of September 16, 2008 was granted for the award of a TDIU due to service-connected PTSD. The Board has considered the entire \ record, and finds that entitlement to an effective date earlier than September 16, 2008 for the award of a TDIU due to PTSD is not warranted. As noted above, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib, 733 F.3d at 1354. The Court has determined there are two components of the phrase “unable to secure and follow a substantially gainful occupation.” Ray v. Wilkie, No. 17-0781 (Ct. Vet. App. March 14, 2019). The phrase has an economic component that considers the Veteran’s ability to secure and follow an occupation earning more than marginal income, and a noneconomic component that considers such factors as the Veteran’s employment history, education, skill, training, physical ability, and mental ability. Regarding the economic component of the Veteran’s ability to secure and follow an occupation earning more than marginal income since he was service-connected for PTSD in August 1983, the Veteran reported he worked as security guard and was self-employed as a karate instructor. See May 1984 VA examination. In July 1989, the Veteran reported he was self-employed as a song writer. See July 1989 VA Form 21-526. While the Veteran did not indicate the amount of income he received as a security guard, karate instructor, or song writer, he reported in June 2007 that he had been able to make a living as a musician over the years. Additionally, information provided on the Veteran’s February 2010 application for a TDIU suggests that the Veteran earned more than marginal income through a combination of his active service in the United States Army Reserve from February 1993 through November 2007 and various other types of employment. See February 2010 VA Form 21-8940. As it relates to the noneconomic component, the May 1984 VA examination indicated the Veteran had mild impairment due to symptoms of PTSD and alcohol abuse. The examiner indicated the Veteran’s impairment due to PTSD and alcohol abuse was primarily social, rather than occupational. While the provider in a July 1989 VA progress note indicated that the Veteran had trouble obtaining and maintaining gainful employment, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not the legal standard for a TDIU award. The Board notes that the evaluation of the Veteran’s service-connected PTSD was increased to 70 percent in July 1989. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. In this case, the Board finds that the evidence of record, including the Veteran’s employment history, prior to September 16, 2008 demonstrates that the Veteran was capable of performing the physical and mental acts required of employment. Lay statements associated with the claims file in March 2006 indicate that the Veteran was generally a functioning member of society, talented, hardworking, enthusiastic, and friendly. The July 2006 correspondence from Dr. P.L. indicating the Veteran would be psychologically incapable of handling the stress of a deployment due to his PTSD does not suggest that the Veteran was incapable of securing and maintaining gainful employment outside of a deployed environment. According to December 2007 correspondence from the Veteran’s Army Reserve commander, the Veteran demonstrated leadership, skills, experience, and devotion to duty. Although March 2006 correspondence from the Veteran’s spouse indicated the Veteran would hibernate in the bedroom for a few days to a few months, it appears the Veteran was able to perform the physical and mental acts required of his ACDUTRA and INACDUTRA in the Army Reserve prior to his retirement required by service policy, while also assuming the responsibilities of being a full-time caregiver for his spouse. While the Board in no way calls into question that the Veteran’s service-connected PTSD has interfered with certain occupational tasks for the entire period on appeal, the Board finds such was contemplated by the staged disability ratings assigned since August 5, 1983. Prior to the September 16, 2008 VA examination, the evidence of record does not demonstrate that symptoms of the Veteran’s PTSD, including poor concentration, extreme anxiety around people, and inability to handle accountability factors associated with gainful employment were so severe that the Veteran would be unable to secure or follow gainful employment. As such, entitlement to an effective date earlier than September 16, 2008 for the award of a TDIU is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.