Citation Nr: 21067636 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-28 908 DATE: November 4, 2021 ORDER An effective date of November 22, 2002, for the grant of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected mood disorder, lumbar spine, and hearing loss, in conjunction with one another, have precluded him from obtaining or maintaining substantially gainful employment since at least November 22, 2002. CONCLUSION OF LAW The criteria for a TDIU, from November 22, 2002, forward, 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 had active service from April 1966 to February 1970. This appeal was most recently before the Board in May 2020 and in May 2021. The May 2020 Board decision denied the Veteran's earlier effective date claim for a TDIU. The Veteran disagreed with that decision and appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in January 2021. In granting the motion, the Court vacated the Board's prior denial of a TDIU, to include on an extraschedular basis. The JMR detailed the parties' agreement that the Board erred when it failed to provide an adequate statement of reasons or bases to support its adjudication of the Veteran's entitlement of TDIU prior to June 9, 2005. More specifically, the Court noted that the Board failed to adequately address its understanding of the term "substantially gainful occupation." The Court pointed to the Veteran's assertion that he "last worked full-time in 1997 and that his work after that time was sporadic and should be considered marginal." See September 2019 VA Form 9. The Court also noted that the Board failed to adequately discuss the Veteran's educational level, prior vocational history, work experience, or relate those factors to the limitations caused by his service-connected disabilities. Additionally, the Court determined that it was unclear why the Board afforded more probative weight to the Veteran's August 2007 hearing testimony of having full-time employment until early-2004 than a March 2003 Behavioral Health Intake Assessment note, in which the Veteran reported that he was last employed in June 2002 and had performed more than 30 jobs in 30 years. The May 2021 Board decision noted that prior to June 9, 2005, the current effective date for a TDIU, the Veteran did not meet the schedular requirements for a TDIU. The Board noted that it was precluded from assigning a TDIU rating on an extraschedular basis in the first instance. As such, the Board referred the claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The case was referred to the Director of Compensation Service in August 2021. The Director of Compensation Service issued her decision on September 15, 2021. The Veteran's 4-years of college, training with the Air Force in aircraft maintenance, experience as a stockbroker, restaurant worker, loan officer, security system and stock securities broker were noted. The Director also noted a Social Security functional assessment, which showed the Veteran was mentally capable of completing simple tasks, getting along with others, and adapting to changes in the workplace. The physical functional assessment showed he could stand, sit, and ambulate for 6-hours in an 8-hour workday, with no noted limitations on pulling or pushing with the upper extremities, and had the ability to lift up to 10 pounds. The Executive Director acknowledged that the Veteran's service-connected disabilities could have a functional impact and impair prolonged activities, but that a high disability rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. The Director concluded by stating that there was no evidence of an inability to perform non-physical employment due to service-connected conditions, prior to June 9, 2005. Here, the case was referred to the Director of Compensation Service and a supplemental statement of the case was issued in September 2021. As such, the Board finds that there has been substantial compliance with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Earlier Effective Date for a TDIU The Veteran asserts that he is entitled to an earlier effective date for an extraschedular TDIU. Specifically, he asserts that he is entitled to an extraschedular TDIU, effective November 22, 2002, the date when his combined disability rating was 60 percent due to his psychiatric disorder being evaluated as 50 percent disabling. The Veteran is currently in receipt of a schedular TDIU beginning June 9, 2005, and the Veteran does not assert that he is eligible for schedular TDIU prior to June 9, 2005. The effective date of an award of a TDIU will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (o)(1). The effective date of an award of a TDIU may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability causing unemployability had occurred, if the application for a TDIU is received within one year from that date. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In general, three possible dates may be assigned depending on the facts of a case, (1) if an increase in disability causing unemployability occurs after the claim is filed, the date that the increase causing unemployability is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability causing unemployability precedes the claim by a year or less, the date that the increase causing unemployability is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability causing unemployability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for a TDIU was received and, if possible, (2) when the increase in disability causing unemployability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Where a Veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As such, an allegation of unemployability and/or the submission of evidence indicating that the Veteran cannot work received in connection with a claim for an increased rating are sufficient to raise a claim for TDIU. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. In December 2011, the Court stated that the claim of entitlement to a TDIU was not a "separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Court thus found that the claim of TDIU was before the Board in January 2010, and that "a clear statement that the appeal of the Veteran's back claim was being divided by the Board and that a separate decision addressing the TDIU would be issued" was absent. As the Board did not address the claim of TDIU, the Court remanded the claim for the Board to address whether the Veteran was entitled to TDIU. In July 2012, the Board found that the Veteran's claim for increased schedular and extraschedular ratings for a lumbosacral strain included a TDIU claim, but remanded the claim for further development. As such, the relevant period on appeal begins on November 22, 2002. VA received correspondence from the Veteran in September 2004, where the Veteran reported that he had been ill since the middle of February and would be disabled, weak and unable to work for an estimated year while he recovered, according to a doctor of the infectious disease department. The Veteran stated that he had acute liver failure. VA treatment records show that he developed liver failure, as a result of medication taken for a nail infection. At the September 2005 Board hearing, he testified that he had worked full-time until February 2004. A review of the Veteran's post-service treatment records also shows that he filled out a Behavioral Intake Form. See VA Treatment Record dated March 26, 2003. He reported that he felt anxious at least once a week, but had felt depressed all day every day for the previous 8 months. He reported that he had been unemployed since June 2002. He reported that he had worked in sales all of his career and was let go due to hearing loss (a service connected condition). The VA treatment records also show that he was being seen by a vocational rehabilitation specialist. See VA Treatment Record dated April 3, 2003. The specialist noted that the Veteran provided a portfolio of 24 of the past 30 jobs he has had in the past 30 years. The Veteran reported that he was let go from most of them due to hearing difficulties, because he was unable to hear accurately during group meetings, with background noise, people with heavy accents, or over the phone. He reported that he completed a bachelor's degree in business administration and marketing and had worked in sales. He enjoyed working in sales, but due to his hearing difficulties, he had been unable to maintain employment, which was frustrating to him. The Veteran was also seen by a team of VA mental health professionals. See VA Treatment Record dated June 24, 2003. The focus of the session was to assess the Veteran's potential to participate in PTSD treatment with a PTSD clinical team (PCT). The team concluded that hearing loss, anger management, and depression had interfered with his ability to maintain employment. The May 2020 Board decision afforded more weight to the Veteran's testimony and correspondence statements that he last worked in 2004, than the March 2003 Behavioral Health Intake Assessment note, in which the Veteran reported that he was last employed in June 2002 and had over 30 jobs in 30 years. The JMR noted that it was unclear as to why the May 2020 Board decision afforded more weight to his testimony and correspondence statements. The JMR also noted that the Board did not adequately address its understanding of the term "substantially gainful occupation," and did not discuss the Veteran's educational background and past work history. All of the concerns of the JMR will be discussed below. Here, the Board notes the April 2003 vocational rehabilitation specialist's treatment notes and the meeting with a VA PCT were not recognized by the May 2020 Board decision. The Board recognizes that the Veteran did testify and report that he last worked in February 2004. However, the Board finds that the weight of the evidence is at least in relative equipoise, as to whether the Veteran had substantially gainful employment, prior to June 9, 2005. The Board affords the Veteran's reports in the Behavioral Health Intake Assessment, his reports to the vocational rehabilitation specialist, and the reports to the VA PCT significant probative weight because they were all offered in the course of seeking treatment, for vocational purposes and the other for medical treatment. Regarding the statements made to the VA PCT, the Board finds those statements made in the course of seeking medical treatment to be highly probative as statements made to clinicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). To bolster his claim, the Veteran has provided his income and tax statements, from 1962, through 2013, showing that even though he may have been employed prior to 2005, it should be considered marginal employment. See Appellate Brief received April 27, 2021 and Income and Tax Statements received April 27, 2021. His income statement shows that he earned $2,900.02 in 2002; $410 in 2003; and $492 in 2004. The Board notes that the poverty threshold was $9,183, in 2002. See https://www.federalregister.gov/documents/2003/11/26/03-29460/poverty-threshold. Here, to the extent that the evidence is against finding that the Veteran was unemployed in 2002, the weight of the evidence supports finding that such employment was not substantially gainful employment. The Veteran's income statements show that he only earned $2,900.02 in 2002, when the poverty threshold was $9,183. Further, while the Veteran had extensive training for aircraft mechanics through the military, and had earned a bachelor's degree in business administration and marketing, he reported that his work experience had entirely been in sales, which he had difficulty maintaining because of his hearing loss disability. Moreover, the VA PCT concluded that hearing loss, anger management, and depression had interfered with his ability to maintain employment. (Continued on the next page) Given the foregoing, the Board finds that the Veteran was unable to maintain substantially gainful employment, during the entire period on appeal, which begins on November 22, 2002. Although the evidence may show that he had some employment in 2002, 2003, and 2004, his income statements show that his earnings were well below the poverty thresholds in those years. The Board has also taken into account the Veteran's educational and training history and his work experience. The Veteran has not been able to maintain jobs working as a mechanic or as a salesperson because of his hearing loss. The VA PCT also found that his anger management and depression impacted his ability to work. Accordingly, an effective date of November 22, 2002, for a TDIU, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.