Citation Nr: 20009734 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-06 303 DATE: February 6, 2020 ORDER Entitlement to an earlier effective date of August 29, 2012, for the award of total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an earlier effective date of August 29, 2012, for basic eligibility for 38 U.S.C. Chapter 35 Dependents’ Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. The competent and credible evidence of record demonstrates that the Veteran’s service-connected disabilities as likely as not precluded him from securing or following a substantially gainful occupation beginning on August 29, 2012. 2. Effective August 29, 2012, the Veteran has had a total service-connected disability, permanent in nature. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for the assignment of an earlier effective date of August 29, 2012, but no earlier, for the grant of a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.18, 4.19 (2019). 2. The criteria for entitlement to an effective date of August 29, 2012, but no earlier, for basic eligibility for DEA benefits under Chapter 35, Title 38 of the United States Code, are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1966 to September 1978. This matter originates from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision the RO granted service connection for a right thumb disability and assigned a 10 percent rating. The Veteran appealed the 10 percent rating to the Board of Veterans’ Appeals (Board) and in a February 2015 decision, the Board denied a higher than 10 percent rating. Also in that decision, the Board declined to take jurisdiction of the issue of entitlement to a TDIU as it pertained to the increased rating claim. The appellant appealed the TDIU determination to the Court of Appeals for Veterans Claims (CAVC) and in May 2016, the CAVC issued a Memorandum decision vacating that portion of the Board’s decision that declined to take jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, in a May 2017 decision, the Board granted the claim for a TDIU. The RO effectuated that decision in a July 2017 rating decision and assigned an effective date of August 27, 2016. The RO noted that August 27, 2016, is the day following the last date that the Veteran was employed. The RO also granted the Veteran Chapter 35 DEA benefits effective August 27, 2016. Earlier Effective Date for a TDIU The Veteran and his representative disagree with the assigned effective date for the TDIU and Chapter 35 DEA benefits awards and they request an effective date of August 29, 2012, which is the date that the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 70 percent rating. While they concede that the Veteran was employed at various points during the period from August 29, 2012, to August 27, 2016, they contend that it was not substantially gainful employment. A TDIU will be granted when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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 those 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. §§ 3.321 (b), 4.16(b). Regarding effective dates, a claim for entitlement to a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Therefore, an effective date of a TDIU claim may be awarded during the one-year period prior to receipt of the claim if it is factually ascertainable that an increase in disability had occurred during that one-year period. Otherwise, the effective date will be the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(2). In this case, as noted, the Veteran has been in receipt of a 70 percent rating for his service-connected PTSD since August 29, 2012. His other pertinent service-connected disabilities include residuals of a right thumb fracture with arthritis, rated 10 percent, and chronic prostatitis, rated 0 percent, since August 2006; a right calf injury, rated 10 percent, since February 2011; tinnitus, rated 10 percent, since April 2013; and bilateral hearing loss, rated 0 percent, since April 2013. He thus satisfies the criteria under 38 C.F.R. § 4.16 (a) In determining the date of claim, as is explained in detail above, this appeal stems from the Veteran’s claim for service connection for a right thumb disability that was received by VA on August 31, 2006, and the RO’s May 2007 rating decision that granted service connection for residuals of a right thumb fracture with arthritis and assigned a 10 percent rating effective the date of claim. Thus, August 31, 2006 is the date of claim. Regarding the date that entitlement arose, the Veteran asserts that it is August 29, 2012, the date that the RO granted service connection for PTSD and assigned a 70 percent rating. In other words, he asserts that this is the date that he satisfied the schedular criteria for assignment of a TDIU. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, the fact that a Veteran has been unemployed for a period of time does not necessarily mean that he or she is unemployable for VA purposes. Moreover, consideration is not given to a veteran’s age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Also, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The Veteran and his representative note that the Veteran worked for some periods between August 2012 and August 2016, but that his employment was sporadic and marginal. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Moreover, as noted, marginal employment, i.e., earned annual income that does not exceed the poverty threshold, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In addressing the economic component of a TDIU, the Veteran’s representative acknowledged in a May 2019 statement that the Veteran’s earnings exceeded the poverty threshold level in 2014 and slightly exceeded it in 2016, but that they were “marginal” in the remaining years. See also VA Form 21-8940 in May 2019. According to the US Census Bureau, the poverty threshold levels for a single individual over the age of 65 for the years 2012, 2013, 2014, 2015, and 2016 are $11,011, $11,173, $11,354, $11,367 and $11,511, respectively. https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Their contentions are consistent with available records to the extent that the records show that the Veteran was more or less consistently employed in 2014 and 2016, and less so in the remaining years that he is claiming. The evidence also contains VA medical records from January 2013 and February 2013 from a social worker and a vocational specialist who reported that the Veteran stopped work in December 2011 after working 33 years as a painter, plumber, and in construction. The Veteran reported at a VA thumb examination in March 2013 that his civilian job as a plumber ended in December 2011 and he had not been able to find a job since. The January 2013 and February 2013 records also noted that the Veteran began collecting “regular social security” at age 64 and that he had to repay “SS” since he earned too much while collecting “SS”. That information explains why VA requests to the Social Security Administration (SSA) for the Veteran’s medical records revealed that there were no medical records. See May 2017 reply from SSA. Turning to the noneconomic component of a TDIU, that is, the Veteran’s ability to secure or follow that type of employment, the Veteran and his representative point out that the Veteran held numerous jobs between 2012 and 2016, which shows that he was unable to maintain employment. While he was shown to have had several jobs during that period, it is not evident from the available records from his former employers why the jobs ended. Put another way, there is no indication from his employers that he was let go from a job due to physical and/or mental disabilities, let alone service-connected disabilities. Moreover, some of the employers as noted on VA Form 21-8949 in May 2019 are temporary staffing agencies for construction. There is also a May 2015 record from a former employer showing that the Veteran’s job from October 13, 2014, to November 15, 2014 as an instrument fitter ended due to a reduction in force. In addition, a VA medical record in February 2013 contains the Veteran’s report that he had been out of work for over a year and was having a hard time finding work due to his age. He indicated at that time that he was ready and willing to work. However, there is also an October 2013 VA psychology note that contains the Veteran’s report that he had been forced to resign as a truck driver due to falling asleep at the wheel. While it is not clear if the reason that he fell asleep is related to his service-connected PTSD with associated sleep problems, that is certainly a possibility. The Veteran added at that time that he had been unemployed for two years. In terms of medical opinion evidence, there are numerous VA outpatient records on file in 2014 and 2015 that state that the Veteran was unemployable due to his PTSD. In addition, a VA examiner in March 2013 opined that the Veteran’s right thumb disability impacted his ability to work. There is also the report from W.T. Cody, MS, a vocational specialist, who interviewed the Veteran via telephone in January 2017. In his January 2017 report, Mr. Cody opined that the Veteran’s PTSD symptoms negatively impacted his employment. He explained that the Veteran’s PTSD symptoms included poor concentration, depressed mood, and sleep impairment likely leading to fatigue, all of which impacted his ability to complete tasks timely and in an efficient manner. He also reported that the Veteran’s right calf and right thumb impacted his employability by causing a decreased pace. In this regard, he relayed the Veteran’s report that his decreased pace resulted in several firings. Mr. Cody opined that it was at least as likely as not that the Veteran was precluded from securing and following a substantially gainful occupation, and has been unable to do so since 2012, because of his service-connected disabilities. He acknowledged that the Veteran did work after 2012, but he reported that he had been unable to maintain those positions. After considering the economic and noneconomic components for a TDIU in light of the pertinent evidence laid out above, the Board finds that the evidence is in relative equipoise as to whether entitlement to a TDIU arose as of August 29, 2012. As such, the Board will resolve reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, since the date that entitlement arose of August 29, 2012, is later than the August 31, 2006, date of claim, it is the proper effective date. 38 C.F.R. § 3.400(o). Furthermore, the law provides that the effective date for a TDIU cannot be earlier than the effective date of service connection for the underlying disability or disabilities upon which the TDIU is based. Delrio v. Wilkie (17-4220), decided December 2019. Thus, since the Board’s grant of the claim for a TDIU in July 2017 is based on the collective impact of the Veteran’s service-connected right calf, right thumb, and PTSD disabilities, the effective date of this award cannot be any earlier than August 29, 2012. Id. Earlier Effective Date for DEA Benefits For the purposes of educational assistance for dependents under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2019). As a result of the Board’s TDIU determination, herein, the Veteran has a total disability rating effective August 29, 2012. Thus, the general criteria for Chapter 35 eligibility are met since August 29, 2012, but no earlier. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.