Citation Nr: 21001716 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-01 923 DATE: January 11, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU), effective November 17, 2009, is granted, subject to the controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder (PTSD) prevents him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted the service connection for PTSD with an evaluation of 70 percent effective November 17, 2009 and a 30 percent assigned from September 16, 2010. In September 2011 the Veteran filed a notice of disagreement (NOD) and in November 2012 the RO issued a statement of the case (SOC). In December 2012 the Veteran filed a substantive appeal (via VA Form 9). In a March 2018 decision, the Board, in pertinent part, denied a rating in excess of 70 percent prior to September 16, 2010 and a 30 percent rating thereafter for the Veteran’s PTSD. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In December 2018, while the matter was pending before the Court, the Veteran’s attorney and VA’s General Counsel filed a joint motion for partial remand (JMPR). In December 2018, the Court granted the parties’ motion, vacated that portion of the Board’s March 2018 decision which denied a rating in excess of 70 percent prior to September 16, 2010, and in excess of 30 percent thereafter for the Veteran’s service-connected PTSD, and remanded the matter for action consistent with the JMPR. In July 2020 the Board determined that entitlement to a TDIU was part of the Veteran's claim for increased rating, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded this issue for further evidentiary development, specifically, to provide the Veteran with a medical examination to determine the current severity of the Veteran’s PTSD and whether the Veteran is entitled to a TDIU. As will be discussed below, the RO substantially complied with the July 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In a November 2020 rating decision, the RO increased the Veteran’s rating for PTSD to 70 percent from September 16, 2010. In November 2020, the RO issued a supplemental statement of the case (SSOC). A January 5, 2021 letter contains a Privacy Act request and request to stay adjudication of the case for 90 days from receipt of the requested records. For the reasons below, the benefit sought is being granted in full and these requests are therefore moot. The Board will thus not delay adjudication of the matter on appeal. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the present case, the Veteran is service connected for PTSD rated at 70 percent disabling. Thus, the Veteran has met the percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran’s service-connected PTSD preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Regarding the Veteran’s employability, in the June 2020 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran reported that he last worked in August 2008. The Veteran stated that his PTSD has a terrible effect on his ability to work. The Veteran stated that he was fired and experiences anger and hallucinations. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Additionally, in a June 2020 letter the Veteran representative stated that the Veteran was unable to maintain gainful employment throughout the appeal period because of his impaired thought processes and inability to appropriately interact with others, which are requirements of any gainful employment setting. In a June 2020 letter, a private physician stated the Veteran’s mental illness rises to the level of complete disability and unemployability. Although the determination of whether a Veteran is entitled to a TDIU is a legal question, not a medical one, Geib, 733 F.3d at 1354, this opinion was based on a review of the Veteran’s medical history and service record and is entitled to substantial probative weight. In June 2020 the Social Security Administration (SSA) furnished the VA with medical treatment records. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991). These records include a disability report filled out by the Veteran where he stated that, along with his non-service connected physical disabilities, his depression, mood swings, and suicidal ideation limited his ability to work. He further stated that his depression has affected his ability to concentrate and lead a normal life. Also, included in these records was a May 2019 treatment record in which a physician noted that the Veteran’s stuttering was a reflection of his anxiety and depression. With regard to the non-economic factors, the Veteran’s educational history is not extensive, having only completed high school and some college. On the Veteran’s DD-214, his Military Occupational Specialty (MOS) is listed as engine mechanic, however, he has not worked in any capacity since 2008. Thus, the above evidence reflects that the Veteran has a limited educational background and employment history. For the foregoing reasons, the Veteran’s service-connected PTSD renders him unable to secure or follow substantially gainful employment in light of his education and employment history. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). As the issue of entitlement to a TDIU was part and parcel of the claim for a higher initial rating effective the November 17, 2009 date of claim, and the Veteran has been unemployed throughout the appeal period, November 17, 2009 is the proper, and earliest possible, effective date for the grant of TDIU. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019) (“the effective date of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based”). Thus, the January 5, 2021, Privacy Act request and request for stay of 90 days from receipt of the documents requested is moot. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.