Citation Nr: 21070626 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-14 368 DATE: November 24, 2021 ORDER Total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective June 20, 2005 is granted. FINDING OF FACT Since June 20, 2005, the Veteran has met the schedular criteria for a TDIU and the evidence has shown that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Since June 20, 2005, the criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107, 5110(a); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1968. He served in Vietnam from March 1967 to January 1968. He was assigned to Company D, 58th Infantry Regiment and participated in the Vietnam Counteroffensive (Phase II) Campaign. 1. Total disability rating based on individual unemployability (TDIU) prior to October 31, 2017 A Veteran may receive a TDIU rating when "in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). TDIU may be assigned where the schedular rating is less than total, when it is found that the Veteran 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. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). The effective date of a TDIU may be determined by submission of a formal claim or by a claim implied by the facts and evidence submitted with a claim for service-connected disabilities. "[A] request for TDIU is best understood as part of an initial claim for VA disability compensation based on the individual effect of the veteran's underlying disability or disabilities or as a particular type of claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447, 448 (2009). Generally, "the effective date of an award based on an initial claim [of] compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a)(1); see 38 C.F.R. § 3.400(b)(2)(i). "A claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). It is necessary to consider TDIU once "a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability." Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). "[D]etermining entitlement to TDIU requires an individualized assessment of each veteran to determine whether he or she (meets the criteria in 48 C.F.R. § 4.16(a))." Todd v. McDonald, 27 Vet. App. 79, 85 (2014). When conducting a TDIU analysis, the Board "must take into account the individual veteran's education, training, and work history." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (en banc). When the AOJ seeks to rely on an opinion that the Veteran is capable of "sedentary work," it must explain "how the concept of sedentary work factors into the veteran's overall disability picture and vocational history." Withers v. Wilkie, 30 Vet. App. 139, 147 (2018). The Veteran has service-connected disabilities that include diabetes mellitus, type II (20 percent, effective June 20, 2004), renal insufficiency (60 percent, effective June 20, 2004), PTSD (70 percent, effective June 20, 2005), hypertension (zero percent, effective June 20, 2005), diabetic neuropathy, right lower extremity (sciatic nerve)(10 percent, effective September 23, 2015), diabetic neuropathy, left lower extremity (sciatic nerve)(10 percent, effective September 23, 2015), diabetic neuropathy, right lower extremity (femoral nerve)(10 percent, effective October 31, 2017), diabetic neuropathy, and left lower extremity (femoral nerve)(10 percent, effective October 31, 2017). His combined rating is 90 percent effective June 20, 2005. Thus, the Veteran has 8 service-connected disabilities, including two disabilities each individually rated at 60 percent or higher, and his combined rating is above 70 percent throughout the appeal period. As such, he has met the threshold criteria for a TDIU since June 20, 2005. The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities as early as June 20, 2005 and whether his effective date can be set on that date pursuant to applicable law. Chronology of Claims, Ratings, Appeals and Effective Dates The Veteran worked as an electrician technician for about thirty-one years before retiring in 2004. At the time of his retirement, the Veteran was approximately 55 years' old. On June 20, 2005, the Veteran filed his initial claim for service connection for diabetes mellitus, type II, hypertension, and PTSD. He later added a claim for renal insufficiency related to his diabetes mellitus, type II. On March 25, 2006, a VA examiner diagnosed the Veteran with diabetes mellitus, type II, hypertension, and benign prostatic hyperplasia. The examiner opined that the Veteran's diabetes mellitus was at least as likely as not the cause of his renal insufficiency. On April 2, 2006, a VA examiner diagnosed the Veteran with chronic and moderate PTSD and depression. That examiner noted that the Veteran's symptoms "can have an effect on his other medical conditions, in particular this diabetes and hypertension." The Veteran reported during that examination that he experienced multiple discipline difficulties in the work environment and stated that he was "fired ten to twelve times but always rehired secondary to union necessities." He reported difficulty with authority figures, verbal and physical aggressiveness at work, and not being employed for the preceding two years. In a ratings decision dated June 6, 2006, the AOJ granted the Veteran's claim for service connection for diabetes mellitus, type II with a 20 percent rating and renal insufficiency with a 60 percent rating, and awarded a combined rating of 70% effective June 20, 2004. The AOJ denied the Veteran's claims for PTSD and hypertension citing a lack of nexus to military service. The June 6, 2006 ratings decision did not address employability. On June 13, 2007, the Veteran filed a Notice of Disagreement seeking increased ratings for diabetes mellitus, type II and renal insufficiency, and challenging the denial of service connection for PTSD and hypertension. A May 15, 2008 Statement of the Case confirmed and continued each finding by the AOJ. The Veteran appealed to the Board on July 14, 2008 via Form 9. On September 10, 2008, the Veteran filed a VA Form 21-8940 seeking increased compensation for TDIU. On October 17, 2008, VA examiners completed an examination regarding the Veteran's claim for TDIU then under consideration. That examination focused on problems caused by the Veteran's diabetes and renal insufficiency consistent with the conditions listed on his Form 21-8940. The review of psychiatric symptoms reflects negative indications for history of interpersonal relationship difficulties, panic attacks, substance abuse, memory problems, loss of control/violence potential, confusion, and suicidal/homicidal ideations. The review of psychiatric symptoms reflects affirmative indications for depression and anxiety. The psychiatric exam found normal affect, mood, and judgment, with no obsessive behavior, inappropriate behavior, or hallucinations. It found normal comprehension of command and above average intelligence. The Veteran's usual occupation was recorded as electronic tech, and the examiners noted that he retired in 2004 with a cause of retirement reported as "eligible by age or duration of work." In the "Summary of Problems, Diagnosis, and Function Effects" section, the exam shows a diagnosis of diabetes mellitus type II and it lists "effect on usual occupation: Not Employed. Are there effects of the problem on usual daily activities: Yes." The effects are "mild" in the categories of chores, exercise, sports, and recreation and "none" in the categories of shopping, travelling, feeding, bathing, dressing, toileting, grooming, and driving. That exam concluded, "Veteran is employable for sedentary but not physical labor based on the condition of diabetes mellitus type II." In a ratings decision dated March 30, 2009, the AOJ denied the Veteran's claim for TDIU because it found the Veteran capable of gainful employment. Of note, the March 30, 2009 ratings decision focused on the Veteran's then-service-connected disabilities of diabetes mellitus, type II and renal insufficiency and did not address PTSD as a potential cause of unemployability. On November 14, 2011, the Board upheld the previous AOJ ratings for diabetes mellitus, type II and renal insufficiency, remanded the Veteran's claims for hypertension, and granted service-connection for the Veteran's PTSD. In that decision, the Board acknowledged the Veteran's unappealed denial of TDIU entitlement, alerted the AOJ to the change in the Veteran's overall disability picture due to the PTSD rating ultimately assigned, and referred the TDIU issue to the RO for appropriate consideration. This referral was never addressed in any subsequent considerations of the Veteran's case nor did the Veteran ever cite this referral as the basis for error by the AOJ. Implementing the Board's decision, the AOJ issued a ratings decision on January 18, 2012 that awarded a disability rating of 70 percent for the Veteran's PTSD effective June 20, 2005. Although it noted behavioral impairments supporting this rating, the ratings decision did not expressly address employability. This brought the Veteran's combined rating to 90 percent effective June 20, 2005. In a ratings decision dated January 8, 2016, the AOJ granted service connection for left and right lower extremity diabetic neuropathy, with an effective date of September 23, 2015, related to the Veteran's diabetes mellitus, type II. These disabilities resulted in 10 percent ratings and the Veteran's combined disability rating remained at 90 percent. Implementing a Board decision on the matter, the AOJ granted service connection for hypertension, associated with in-service herbicide exposure in Vietnam, with a 0 percent rating effective June 20, 2005 in a ratings decision dated May 31, 2017. On September 5, 2017, the Veteran's attorney submitted a Notice of Disagreement on the Veteran's behalf that indicated the Veteran sought review of his recently awarded 0 percent rating for service-connected hypertension, "to include entitlement to a total disability rating based on individual unemployability ("TDIU")." The letter went on to assert, "the Veteran meets the schedule rating criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a), since at least 2004." The Veteran filed another claim for TDIU via Form 21-8940 that the AOJ received on October 31, 2017. In a ratings decision dated February 8, 2018, the AOJ granted TDIU, among other decisions on the Veteran's related claims, because it found that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. That decision acknowledged that the Veteran's service-connected conditions caused him to discontinue working in 2004. Citing a 2018 VA examination, the AOJ determined the Veteran's PTSD "causes (him) to have difficulty interacting with coworkers and supervisors due to (his) anxiety, difficulty completing tasks in a timely manner, and difficulty managing the normal stressors of a work environment. That ratings decision further notes that "(the Veteran's) service-connected peripheral neuropathy interferes with (his) ability to stand or walk for long periods of time which would also make it difficult to maintain his prior occupation of being an electrician." The AOJ set the effective date for TDIU at October 31, 2017 because it interpreted the Veteran's October 31, 2017 Form 21-8940 as a separate application for TDIU without considering the totality of the disabilities and claims that the Veteran had pursued continuously since June 20, 2005. On April 18, 2018, the Veteran's attorney timely submitted a Notice of Disagreement challenging the effective date of the Veteran's TDIU award, as set forth in the February 2018 ratings decision, and seeking a higher rating for each of the Veteran's service-connected disabilities. In response to the September 2017 NOD, the AOJ issued a Statement of the Case on April 9, 2019 that addressed hypertension but did not address TDIU. The Veteran's Form 9 (May 15, 2019) also focused on the hypertension claim and did not mention TDIU. On September 11, 2019, the Board denied the appeal for an increased rating for hypertension. Noting the Veteran's request in the NOD for an effective date prior to October 31, 2017 for his TDIU, the Board remanded the TDIU effective date issue to the AOJ. Citing Harper vs. Wilkie, 30 Vet. App. 356 (2018), the Board pointed out that pursuit of an earlier effective date still remained pending from the Veteran's pursuit of increased initial rating claim for hypertension. Harper stands for the proposition that an intervening determination of a stand-alone claim for TDIU does not bifurcate TDIU from an underlying claim still in an appellate status. This is true even when the Veteran does not appeal such a determination. In the case of an inferred claim for TDIU under Rice, based on pursuit of increased ratings and evidence of unemployability, until the full benefit is resolved on appeal, including the effective date, the TDIU claim continues to run with the underlying claim under Harper. In this case, because the Veteran appealed his initial disability ratings for renal insufficiency and diabetes mellitus, type II, as well as the denial of PTSD and hypertension, and because he submitted "cogent evidence of unemployability," the effective date is preserved in the date of receipt for those initial claims. On remand, the AOJ looked separately at the VA Form 21-8940 submitted in 2008 and the VA Form 21-8940 submitted in 2017. In both cases, the AOJ failed to consider the holistic totality of the effects that the Veteran's service-connected disabilities had on his ability to secure and follow substantially gainful employment prior to October 31, 2017. Under Rice and Comer, the AOJ erred by failing to consider "cogent evidence of unemployability" submitted by the Veteran in his pursuit of initial determinations for service connection and, subsequently, for higher ratings of those disabilities. Furthermore, the conclusion that the Veteran was capable of sedentary work, from the March 30, 2009 ratings decision, insufficiently considered [factors] that would address whether such work would qualify as "gainful employment." See Whithers, supra. Summary of Unemployability A review of the claims file establishes that the Veteran's disabilities have been largely consistent throughout the appeal period. In a treatment note from October 2005, the provider recorded, that the Veteran immediately became tearful when recounting terrible experiences, with depressed mood, irritability, anger, flashbacks, nightmares all several times per week. In an affidavit that the Veteran submitted along with his October 2017 VA Form 21-8940, the Veteran reported that he was unable to control his bladder while he was working, on average having to go to the bathroom 10-12 times per day. He further reported difficulties maintaining his blood sugar requiring him to take frequent breaks. He reported symptoms of PTSD that interfered with his work, including nightmares and difficulty sleeping leading to reduced sleep and daytime exhaustion/inability to focus. The Veteran's attorney submitted an eleven-page "TDIU Vocational Assessment Report" from a private consultant who opined as to the effect that the Veteran's disabilities would have had on his ability to secure and follow gainful employment. This report reflects a thorough awareness of the Veteran's claims file and the circumstances surrounding the Veteran's claimed unemployability. According to the consultant's report, the Veteran's compromised ability to concentrate, chronic fatigue due to sleep impairment, and other PTSD-related manifestations precluded his ability to obtain and maintain work. The consultant highlighted that, by 2015 at the latest, the Veteran experienced lower extremity numbness and shooting pain as a result of neuropathy related to his service-connected diabetes mellitus, type II. The consultant concluded that the Veteran was "unable to secure and follow substantially gainful employment, to include sedentary unskilled employment, since at least June 2005." Vocationally, the Veteran's consultant's report noted that the Veteran graduated from high school and later obtained an electrician technician certification. The Veteran worked as an electrician technician for approximately thirty-one years prior to his "retirement" from Chrysler in 2004. That occupation is considered semi-skilled work and classified as light exertional level according to the Dictionary of Occupational Titles. The consultant opined that the Veteran's service-connected conditions eroded his ability to retain or execute any transferable skills throughout his semi-skilled vocational history due to his difficulties concentrating, learning new skills, maintaining pace and productivity, and interacting inappropriately with otherwise in the workplace. The Veteran's Social Security Earnings Report reflects that his taxed earnings dropped precipitously from a high of $87,900 in 2004 to $761 in 2005 and less than $200 in all but one of the years through 2015. 2014 and 2015 record zero earnings for the Veteran. As of January 20, 2005, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Given the totality of the disabilities reflected in the record, their consistent presence from the outset of the initial claim on June 20, 2005 to present, and their acknowledged interference with the Veteran's ability to work in his profession of over thirty-one years as an electrician technician, the weight of the evidence establishes that the Veteran qualifies for schedular TDIU as of the date of his initial claim. As he pursued his various claims and appeals, the Veteran reported information that reasonably raised the question whether he was unemployable due to his conditions. The information accumulated in the record as those claims and appeals unfolded, viewed holistically as applied to this individual Veteran, support this conclusion. (Continued on the next page) This is a full grant of the effective date sought per the submissions of the Veteran's attorney. The evidence of record is insufficient to establish unemployability due to factors associated with diabetes mellitus, type II or renal insufficiency without also considering factors associated with the Veteran's PTSD. It is the combined effect of his physical and mental disabilities that convince the Board that the Veteran was unemployable and the effective date for PTSD is June 20, 2005. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Slabbekorn Jr, Ray 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.