Citation Nr: 21062299 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-52 199 DATE: October 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from February 24, 2010, but no earlier, to May 8, 2018 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an award of basic eligibility to Dependents' Educational Assistance (DEA) benefits from February 24, 2010, but no earlier, to May 8, 2018 is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From February 24, 2010, but no earlier, to May 8, 2018, the Veteran met the schedular criteria for a TDIU and was unemployable due to service-connected disabilities. 2. The Veteran was permanently and totally disabled for purposes of basic eligibility to DEA benefits from February 24, 2010, but no earlier, to May 8, 2018. CONCLUSIONS OF LAW 1. The criteria for a TDIU due to service-connected disabilities from February 24, 2010 (but no earlier) to May 8, 2018 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for basic eligibility to DEA benefits from February 24, 2010 (but no earlier) to May 8, 2018 are met. 38 U.S.C. § 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to May 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted a TDIU, as well as DEA benefits, both effective May 8, 2018. The Veteran timely appealed the effective date assigned for the grants of a TDIU and DEA. In April 2020, the Board denied an effective date earlier than May 8, 2018 for the grants of a TDIU and DEA. In June 2021, the Court vacated the Board's April 2020 decision that denied an effective date earlier than May 8, 2018 for the grants of a TDIU and DEA, and remanded the matter for additional development and readjudication in compliance with directives specified in a May 2021 Joint Motion for Remand (JMR) filed by counsel for the Veteran and the VA. Entitlement to an effective date prior to May 8, 2018 for the grants of a TDIU and DEA The Veteran submitted a Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) on May 8, 2018. However, the Veteran's counsel correctly indicated on the May 2018 VA Form 21-8940 that the claim for a TDIU was part of the claim for a compensable disability rating for bilateral hearing loss that was submitted on February 24, 2010 and was still pending at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). As evidence of unemployability due to bilateral hearing loss, to include the May 2018 VA Form 21-8940, was submitted during the course of the appeal for a compensable disability rating for bilateral hearing loss, TDIU is part and parcel of this claim, and the appeal period for the grant of a TDIU began February 24, 2010, the date of submission of the claim for an increased, compensable disability rating for bilateral hearing loss. Moreover, as will be discussed further below, the Veteran contends that his service-connected posttraumatic stress disorder (PTSD) and tinnitus disabilities should be considered a single disability for purposes of 38 C.F.R. § 4.16(a)(4) and meeting the schedular criteria for award of a TDIU prior to May 8, 2018. 38 C.F.R. § 4.16(a)(4) states that multiple injuries incurred in action will be considered as one disability for the purpose of one 60 percent disability. 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). The Veteran is currently in receipt of service connection for PTSD, evaluated at 30 percent disabling from February 24, 2006, 50 percent from November 24, 2009, and 70 percent from May 8, 2018; sleep apnea, evaluated at 50 percent from January 28, 2021; bilateral hearing loss, evaluated noncompensable from February 24, 2006, 10 percent from June 4, 2018, and 20 percent from December 30, 2019; and tinnitus, evaluated at 10 percent from February 24, 2006. The Veteran's combined disability rating is 40 percent from February 24, 2006, 60 percent from November 24, 2009, 70 percent from May 8, 2018, 80 percent from June 4, 2018, and 90 percent from January 28, 2021. As noted in the introduction, the Veteran is in receipt of a TDIU from May 8, 2018, the date he met the schedular criteria. As noted previously, multiple injuries incurred in action will be considered as one disability for the purpose of one 60 percent disability. 38 C.F.R. § 4.16(a)(4). Here, the Veteran's PTSD was service-connected in a June 2006 rating decision, and the Agency of Original Jurisdiction (AOJ) conceded that the Veteran's stressor was due to his combat in Vietnam. In addition, service connection was granted for tinnitus in the same decision, and it was noted that the Veteran's tinnitus began in 1970 after an explosion. The Veteran's military personnel records indicate that he was stationed in Vietnam from July 1970 to May 1971. Therefore, the Board finds, as the Veteran engaged in combat in Vietnam and was deployed there from July 1970 to May 1971, that the explosion that caused the Veteran's tinnitus occurred during combat in Vietnam in 1970. Thus, service connection for the Veteran's PTSD and tinnitus was granted based on combat injuries. See VAOPGCPREC 08-2001, Meaning of "Injury" for Purposes of Active Service (injury means harm resulting from external trauma and PTSD can be a disability due to injury in some circumstances). As multiple injuries incurred in action are considered one disability for purposes of one 60 percent disability, and the Veteran's PTSD and tinnitus are multiple injuries that were incurred in action, the Veteran meets the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a) from November 24, 2009. The Veteran meets the schedular criteria from November 24, 2009 because the Veteran was evaluated 50 percent disabling on that date, and the Veteran was already rated 10 percent disabled from tinnitus on that date. 38 C.F.R. § 4.25. The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him from February 24, 2010, the date of the claim for an increased compensable disability rating for bilateral hearing loss, or within a year prior to the claim, 38 U.S.C. § 5110(b)(3), to May 8, 2018, the date of the award of TDIU. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. 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 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). For the following reasons, the Veteran was unemployed and unemployable due to his service-connected disabilities from February 24, 2010 to May 8, 2018. The Veteran's May 2018 VA Form 21-8940 shows that he was last employed full-time in 1998 as a board operator at ARCO chemical plant, where he worked for 23 years. He last worked in 2010 part-time as a driver for Enterprise. He completed two years of college with no other education or training. In March 2018, a private vocational examiner found that it was at least as likely as not the Veteran had been unable to secure and follow substantially gainful employment, to include sedentary, unskilled employment, due to his service-connected disabilities of PTSD, bilateral hearing loss, and tinnitus since at least 1998. The examiner noted that the Veteran was fired from his full-time job in 1998, in part due to his severely impacted communication abilities. Throughout his years in the workforce, both full and part-time, the Veteran struggled immensely with appropriate social interaction as a result of his PTSD symptoms. He reported frequent altercations and resulting disciplinary actions as a result of his temper and tendency to lash out. His PTSD symptoms led him to make inappropriate and unprofessional comments, decisions, and actions that would not be tolerated by any employer. Moreover, the Veteran would likely require additional supervision, assistance, and demonstration of tasks throughout the workday due to hearing and communication difficulties, which would be unduly burdensome for any employer. These limitations would likely result in the Veteran having a substantial amount of time off task, rendering him unable to maintain work pace and complete tasks in a timely manner. Employers, in the examiner's opinion, would not tolerate the Veteran's inability to adhere to directives and maintain pace. Therefore, it follows that the Veteran is entitled to an award of TDIU from February 24, 2010, the date of receipt of his claim for a compensable disability rating for bilateral hearing loss, as the Veteran's VA Form 21-8940, March 2018 private vocational expert report, and the other evidence of record reflects that he was unemployed and unemployable from approximately 1998. It is not, however, factually ascertainable that the Veteran's service-connected disabilities rendered him unemployable For the foregoing reasons, entitlement to a TDIU is warranted from February 24, 2010 to May 8, 2018. Although the effective date of the grant of an increased rating may be up to a year prior to the date of claim, there is no evidence or argument in this case that it was factually ascertainable within a year prior to February 24, 2010 that the Veteran's service-connected disabilities rendered him unemployable. Thus, an effective date prior to February 24, 2010 for the grant of TDIU is not warranted. Entitlement to an effective date earlier than May 8, 2018 for the award of basic eligibility for DEA Regarding the earlier effective date for an award of basic eligibility for DEA, Chapter 35 benefits, DEA benefits are payable to the child, spouse, or surviving spouse of a veteran 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. § 3510; 38 C.F.R. § 3.807(a), 21.3021. In a July 2018 rating decision, the Veteran was awarded basic eligibility to DEA benefits, effective May 8, 2018, the date he was awarded a TDIU and was adjudicated to be 100 percent disabled. There are other avenues through which basic eligibility may be granted. However, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id. As eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, and permanent and total disability has now been found from February 24, 2010, the date of the award of a TDIU, entitlement to basic eligibility for DEA benefits is warranted from February 24, 2010, to May 8, 2018. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.