Citation Nr: 21066587 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-46 534 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from March 13, 1998 to December 31, 1999, and from July 8, 2003 to December 31, 2005, is granted. FINDINGS OF FACT 1. From March 13, 1998 to December 31, 1999, the Veteran's service-connected posttraumatic stress disorder (PTSD) rendered him unable to secure and follow a substantially gainful occupation. 2. From July 8, 2003 to December 31, 2005, the Veteran was unable to secure and follow a substantially gainful occupation and was marginally employed. CONCLUSION OF LAW The criteria for haven been met for a total disability rating based on individual unemployability for the period from March 13, 1998 to December 31, 1999 and from July 8, 2003 to December 31, 2005. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from A July 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in New York, New York. A December 2019 Board decision denied an earlier effective date. The Veteran appealed the decision to the Court. The Court issued an April 2021 memorandum decision. The order vacated and remanded the portion of the Board's decision denying TDIU for the periods from March 13, 1998 to December 31, 1999 and from July 8, 2003 to December 31, 2005. The Court did not disturb the remainder of the Board's decision and only the specific periods remanded will be addressed in this decision. This appeal has been advanced on the docket. 38 U.S.C. § 7107; 38 C.F.R. § 20.900(c). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Considering the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim decided herein are moot. Earlier Effective Date TDIU Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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. It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). V A must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Factual Background The Veteran filed his initial claim for TDIU in a March 1998 informal claim. The Veteran's claim for a TDIU was initially denied in a November 2014 rating decision. After his December 2014 notice of disagreement, but before a statement of the case was issued, the Board took jurisdiction of the appeal in May 2016 under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A July 2016 rating decision granted a TDIU effective May 9, 2011. The Veteran appealed seeking an earlier effective date. A December 2017 Board decision denied an earlier effective date. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in an August 2018 order granting a joint motion for remand (JMR). In compliance with the JMR's instructions, in February 2019 the Board remanded the appeal with instruction to request from the Veteran and verify his periods of employment from March13, 1998 to May 9, 2011. In an April 2019 statement, The Veteran outlined his employment history. In an August 2019 statement the Veteran's representative explained the Veteran tried numerous times to retrieve his employment information but was unable to obtain the information. Analysis First, the Board finds March 13, 1998 is the date of claim. The Veteran's representative made it clear in writing they were initiating a claim for service connection of PTSD. In a June 1998 formal application, the Veteran stated he was unable to work due to his PTSD. The Board notes the Veteran's PTSD is rated at 70 percent from March 13, 1998 and meets the schedular threshold for both periods. Second, entitlement arose prior to March 13, 1998. During the October 1998 VA examination the Veteran stated he has been unable to work for the previous four to five years due to PTSD symptoms. Accordingly, the date of claim is later than the date entitlement arose. Period from March 13, 1998 to December 31, 1999 Third, the Board finds from March 13, 1998 to December 31, 1999, the Veteran's PTSD rendered him unable to secure and follow a substantially gainful occupation. During his October 1998 VA examination the Veteran stated he was not working. The Veteran explained he has not been able to maintain gainful employment for the previous several years due to PTSD symptoms. The VA examiner determined the Veteran had an inability to get along well with others. The examiner explained the Veteran's has impulsively left his job when he had difficulty dealing with co-workers or supervisors. The examiner attributed the Veteran's symptoms to his PTSD. During January 1999 VA treatment, the Veteran stated his PTSD symptoms and behavior have caused him to lose numerous jobs. In an April 1999 statement the Veteran, the Veteran noted he was still unemployed because of his problems with PTSD. In an April 2019 Statement, The Veteran's representative reported he had three separate jobs in 1998. One lasted for six months, one lasted for two weeks, and one for seven days. The Board affords significant probative weight to the October 1998 VA examination and the Veteran's reported employment history from March 13, 1998 to December 31, 1999. First, the VA examiner determined the Veteran's inability to work well with others included impulsivity in the workplace. Second, the Veteran's work history in 1998 and lack of employment in 1999 both indicated an inability to maintain a substantially gainful occupation. Accordingly, TDIU is warranted from March 13, 1998 to December 31, 1999. Period from July 8, 2003 to December 31, 2005 Lastly, from July 8, 2003 to December 31, 2005, the Board finds the Veteran was unable to secure and follow a substantially gainful occupation and was marginally employed. In July 2003 VA treatment the Veteran reported increased irritability and stated medication was not helpful. In an April 2019 statement, the Veteran explained he stopped working on October 25, 2003 because his PTSD was getting very bad. The Veteran stated he got a new job in November 2003, but his new supervisor was understanding of his difficulties and would allow him to take breaks often and leave work early if necessary. In the March 2014 regional office hearing, the Veteran explained his supervisor would "let a lot of things go." If the Veteran had an argument with someone the supervisor would let the Veteran take a break and told him not to worry, he would still get paid, or to go home for a half day. The Veteran explained he would have to take a half day when he had a panic attack in the middle of the day. The Veteran's SSA earnings showed his 2004 and 2005 earnings were only a couple hundred dollars over the poverty threshold. The Board finds the accommodations by the Veteran's employer combined with only just exceeding the poverty level, showed the Veteran was unable to maintain a substantially gainful occupation and was marginally employed through December 2005. The Board affords significant probative weight to the July 2003 VA treatment record, yearly income, and the Veteran's statements. The July 2003 VA treatment record indicated the Veteran's PTSD began to worsen and resulted in the Veteran being unable to maintain his current employment. The Veteran's new position in November 2003 was marginal employment through December 2005. The Veteran's earnings records are consistent with his statements that he would have to take a half day after a panic attack. Additionally, the Veteran's employment was protected by his supervisor. The Veteran could take extra breaks without lose of wages and the Veteran's angry outburst were not disciplined. July 8, 2003 was the first time it was factually ascertainable the Veteran's PTSD symptoms were affecting his work. Accordingly, Accordingly, TDIU is warranted from July 8, 2003 to December 31, 2005. As noted above, the Board decision is limited to the period vacated and remanded in the April 2021 Court order. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.