Citation Nr: 21064614 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-23 385 DATE: October 21, 2021 ORDER Entitlement to an effective date of December 26, 2007, and no earlier, for the award of total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an effective date of December 26, 2007, and no earlier, for the award of eligibility to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the U.S. Code is granted. FINDINGS OF FACT 1. The Veteran's service-connected disabilities rendered the Veteran unable to secure and maintain substantially gainful employment as of December 26, 2007. 2. As of December 26, 2007, the Veteran was rendered permanently unable to follow substantially gainful employment by his service-connected disabilities, and it was reasonably certain that this impairment would continue throughout his life. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 26, 2007, and no earlier, for the award of TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.16. 2. The criteria for entitlement to an effective date of December 26, 2007, and no earlier, for the award of DEA benefits under Chapter 35, Title 38 of the U.S. Code have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1969 to February 1971. These matters come to the Board of Veterans' Appeals on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in an April 2021 decision for further development. The issues of service connection for migraines headaches, secondary to service-connected PTSD, and effective date for TDIU prior to April 11, 2017, were deemed intertwined and were remanded. In a May 2021 rating decision, the Veteran was granted service connection for headaches with a 50 percent disability evaluation, effective November 18, 2015. TDIU entitlement was also granted an earlier effective date of November 18, 2015. Additionally, DEA benefits eligibility was also granted an earlier effective date of November 18, 2015. See May 2021 Rating Decision. Effective Date 1. Entitlement to an effective date of December 26, 2007, and no earlier, for the award of total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks entitlement to an effective date of December 26, 2007 for the award of TDIU. In general, the effective date of an award of disability compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The Veteran's claim for TDIU arose out of his increased rating claims for his several service-connected conditions, to include PTSD, digital nerve injury, tinnitus, bilateral hearing loss and right index finger scar. See April 2020 Third Party Correspondence. In terms of the date entitlement arose, TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the combined rating for the Veteran's physical and mental disabilities was 80 percent, effective December 26, 2007 and thus they satisfied the schedular criteria set forth in 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See 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"). As noted above, beginning December 26, 2007, the Veteran met the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he had a single disability rated at 70 percent. The Veteran has been rated at 70 percent for PTSD since December 26, 2007 and 100 percent for PTSD since April 11, 2017. The Veteran contends that his service-connected PTSD, in conjunction with his musculoskeletal service-connected disabilities prevented him from securing or following substantially gainful employment and that he became too disabled to work in 2002. See December 2019 Application for Increased Compensation Based on Unemployability; see also March 2020 Supplemental Brief & November 2019 Brief in Response to 90 Day Letter. The Veteran also has been receiving Social Security Disability benefits since 2001. See November 2019 Brief. The Veteran asserted that the March 2017 PTSD Disability Benefits Questionnaire (DBQ) and the April 2017 Vocational Assessment both support the Veteran's claim that the Veteran's PTSD symptoms have been in existence since the date of his claim, December 26, 2007 and prevent him from maintaining substantially gainful employment. See Id. In the March 2017 psychiatric assessment associated with the DBQ, the psychiatrist opined that Veteran's severity of his symptom complex related back to his initial date of service connection for PTSD in December 2007; Veteran suffers from chronic sleep impairment, disturbances o motivation and mood, hypervigilance, mild memory loss and impairment of short-term and long-term memory while reporting difficulty with concentrating, irritability, establishing and maintaining relationships and adapting to stressful circumstances including work. The expert concluded the symptoms have been in existence and recurrent since Veteran's discharge from service and have continued to deteriorate, preventing him from maintaining substantially gainful employment. See March 2017 Residual Functional Capacity evaluation. In the April 2017 vocational assessment, the vocational consultant concluded that, after review of C&P examinations from July 2014, VA treatment records in 2008 that showed diagnoses of depression and PTSD, evaluation completed in March 2017, and associated medical literature, the Veteran is "totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected acquired psychiatric disorder, digital nerve injury, bilateral hearing loss and right index finger scar and the record supports this finding as ar back as the date of filing." See April 2017 Vocational Assessment. The Veteran's medical records show that he made complaints of migraine headaches in December 2009, for which service connection is in effect and rated as 50 percent disabling since November 18, 2015. A July 2008 letter from a clinical psychologist revealed Veteran was diagnosed with PTSD and depressive disorder NOS and he reported nightmares two to three times per week, diminished interest in important activities, social detachment, emotional detachment, difficulty expressing feelings, sleep impairment, irritability, anger outbursts, problems concentrating, hypervigilance, exaggerated startle response. Veteran was also seen for individual therapy since June 2005 approximately once every other month. See July 2008 Third Party Correspondence. November 2007 and January 2008 medical treatment records document Veteran's multiple PTSD symptoms which included mild depression, irritability, problems concentrating, hypervigilance exaggerated startle response, nightmares, flashbacks, and difficulty getting motivated. As the evidence suggests the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, the Veteran's service-connected PTSD has impacted the Veteran's ability to successfully perform work in most occupational settings. Here, in light of the Veteran's education, training and work experience, to include his eighth grade education and history of working in trucking, the Board finds that he has been unable to maintain a substantially gainful occupation as a result of the combination of his service-connected PTSD and other service-connected physical disabilities as of December 26, 2007. Geib. Further, as the Veteran had not been employed for several years prior to December 26, 2007, and thus the "worsening" took place well in excess of one year prior to that time, an effective date prior to December 26, 2007, is not warranted. See Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). As both dates used to determine effective dates are December 26, 2007, the Board finds that this is the most appropriate effective date for the awards of TDIU and, consequently, DEA benefits. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, an effective date of December 26, 2007, and no earlier, for the award of TDIU is warranted. 2. Entitlement to an effective date of December 26, 2007, and no earlier, for the award of eligibility to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the U.S. Code Eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. Here, in light of the foregoing, the Board concludes that the effective date for the award of TDIU should be used for the Veteran's basic eligibility for DEA benefits. Accordingly, an effective date of December 26, 2007, and no earlier, for the award of DEA benefits is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.