Citation Nr: 21072245 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-40 561 DATE: December 2, 2021 ORDER An effective date prior to August 1, 1994, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. A total disability rating due to individual unemployability due (TDIU) is granted. FINDINGS OF FACT 1. The Veteran had active duty from November 1967 to September 1970. 2. The Veteran is not entitled to an effective date prior to August 1, 1994, for service connection for PTSD. 3. The Veteran's service-connected disabilities have precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 1, 1994, for the grant of service PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2021). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. (2021) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date The Veteran contends that an effective date prior to August 1, 1994, for service connection for PTSD is warranted. He asserts that the proper effective date should be September 8, 1971, the date he initially filed a claim for a nervous disorder. Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). In cases involving the correction of military records, as is the case here, an award is effective from the latest of the following dates: (1) date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date of receipt of claim if claim was disallowed; or (3) one year prior to date of reopening of disallowed claim. 38 U.S.C. § 5110(i) and 38 C.F.R. § 3.400(g). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date a veteran applied for benefits. See Roper v. Nicholson, 20 Vet. App. 173 (2006). The Veteran's period of service from November 1967 to September 1970 was initially characterized as under conditions other than honorable. He initially attempted to seek redress for this in September 1970. He filed claim for compensation interpreted as another petition to recharacterize his claim in February 1977. An initial determination upgrading his character of discharge was made in August 1977, but importantly a secondary review in May 1978 reversed this finding. However, a June 2015 VA determination finalized his character of discharge as upgraded to under honorable conditions, as his total time AWOL in service had previously been incorrectly tabulated as more than 180 days. The June 2015 finalized determination stated that the character of discharge determination was effective May 23, 1977, the date of the initial preliminary upgrade. The RO later awarded service connection for PTSD with the effective date of service connection of August 1, 1994, stating this was the first date the Veteran filed for reopening after the now 1977 date of the change of discharge determination, although review of the claims file shows that on March 28, 1980, he applied for reopening of his nervous condition, which was part and parcel of the later claim for PTSD. As stated above, under 38 C.F.R. § 3.400(g), the latest of either the date of application for change, the date of claim if a claim was disallowed, or a year prior to the date of reopening of a disallowed claim, is the eligible date for an earlier effective date of service connection. The latest of these is the date of the application for change resulting in the upgrade of discharge status, which here is December 3, 2014. The currently assigned effective date of August 1, 1994, is earlier that the date of the application to upgrade or claim of service connection for PTSD. An assertion that an earlier decision made a clear and unmistakable error (CUE) in either assigning the August 1, 1994, effective date or failure to upgrade the Veteran's character of discharge requires a separate claim and is not currently before the Board for adjudication. Further, previous attempts at upgrading his character of discharge and efforts to seek service connection for an acquired psychiatric disorder resulted in final decisions and were not appealed. Thus, no document prior to December 3, 2014, could be construed as an unaddressed and nonfinal attempt to upgrade status or obtain service connection for a psychiatric disorder. As such, the evidence weighs against finding an effective date prior to August 1, 1994, is warranted, and the appeal is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). During the appeal period, the Veteran has been service connected for PTSD at 30 percent until May 6, 2021, and 60 percent thereafter, for bilateral hearing loss at a noncompensable rate percent prior to May 6, 2021, and 20 percent thereafter, tinnitus at 10 percent, for a right knee disability at 10 percent, a left knee disability at 40 percent until October 1, 2019, and then 30 percent thereafter, at a noncompensable rate for a shoulder shrapnel scar. He is also service-connected for a traumatic brain injury (TBI) which is rated in conjunction with PTSD. Collectively he has a total combined rating of 70 prior to October 1, 2019, a 60 percent rating from then until May 6, 2021, and a 90 percent rating thereafter. From the date of the claim on April 15, 2016, until October 1, 2019, the ratings meet the schedular criteria for TDIU because he has a total combined rating of 70 percent with at least one disability rated at 40 percent. Similarly, following May 6, 2021 he has a total combined rating of 90 percent and at least one disability at 40 percent. However, for the period between, the total combined rating is 60 percent, which would then require it be based on a singular disability to warrant service connection. Under 38 C.F.R. § 4.16(a), a single disability may be assessed from multiple service-connected disabilities if derived from the same etiology. Here, his left knee disability and PTSD, at least in part for the latter, were derived from an incident hitting a landmine during service, and his right knee disability, as secondary to the left, thus initially derived from the same incident. Thus, the combined total rating during this period is 60 percent, and as they count as one disability as having been derived from a single event or etiology, and therefore the schedular TDIU criteria is met for the entirety of the appeal period. Next, as to education, the Veteran did not indicate on his April 2016 application for a TDIU that he had any higher education or additional vocational training. As to employment, at the June 2021 Board hearing, he testified he stopped working as a car salesman in 1981. On an April 2016 application, he wrote that he last worked from 1989 to 1991 for a management company. Finally, a May 2016 VA examiner stated that the Veteran had retired in 2014. While the evidence is not wholly clear when he stopped working, it does not show that he was employed during the appeal period. Turning then to the functional impact of his disabilities, PTSD and TBI have overlapping symptoms that increased during the appeal period. An August 2015 VA examiner found symptoms of depressed mood, chronic sleep impairment, and disturbances of mood but did not find they caused significant functional impairment. However, VA medical records in January 2016, November 2018, and November 2019 show increasing irritability and anxiety. May 2021 and June 2021 VA examiner found significantly increased symptoms of PTSD and TBI with occupational and social impairment in most areas, frequent panic attacks, depressed mood, anxiety, difficulty maintaining effective work and social relationships, and unprovoked irritability with periods of violence. Additionally, impairment of memory, attention, concentration, and visual spatial orientation was noted and collectively the two VA examiners found he would have difficulty working in jobs requiring memory, concentration, or interaction with others. As to the Veteran's knee disabilities, a November 2015 A examiner recorded ankylosis of the left knee, and collectively May 2016 and July 2016 VA examiners found due to his knee disabilities, he would have difficulty working in a job where he had to use stairs, lift anything heavy, or ambulate over long distances. January February 2017 private medical records show increasing knee pain, weakness, and giving away. A February 2018 VA examiner found similar functional impairment caused by the Veteran's knees as did the May and June 2016 VA examiners. The February 2018 VA examiner listed four separate surgical procedures for the Veteran's left knee. VA and private medical records with generally increasing symptoms until a left total knee replacement, although March 2019 VA medical records show that left knee weakness remained after the surgery. Next, as to hearing loss and tinnitus, an examination report from November 2015, an addendum opinion regarding functional impairment in May 2016, and a May 2021 VA examination report all show that the Veteran had trouble hearing people and needed to read lips. The May 2016 VA addendum in particular found that this inability to hear other people would be a barrier to a wide range of employment. For the service-connected scar, August 2015 and August 2021 VA examiners found no functional impairment, and no other evidence has shown that it impairs employability. Collectively, the Veteran's service-connected disabilities cause significant functional impairment. His knee disabilities limit his ability to walk, lift, or perform significant manual labor. While the July 2016 VA examiner stated his knee disabilities would not preclude him from an office environment, this did not consider his knees in combination with his PTSD/TBI symptoms and difficulty hearing due to bilateral hearing loss and tinnitus. Next, the PTSD/TBI symptoms cause difficulty with concentration and memory, as well as interaction with coworkers or customers, which would make working in an office environment challenging. The August 2015 VA examination and the May 2016 VA addendum opinion showed limited functional impairment; however, the August 2015 examination report on which each was based was eight months prior to the claim on appeal. Further, January 2016 VA medical records show difficulty dealing with a stressful situation, comprehending what medical professionals explained to him, irritability and anger which a medical provider observed as seeming like he was on the edge of a breakdown. Thus, the medical evidence supports a finding that the PTSD/TBI symptoms were severe throughout the appeal period than initially determined by the August 2015 VA examination and May 2016 addendum opinion. Next, bilateral hearing loss and tinnitus make it difficult for the Veteran to hear in loud environments, or when he is unable to look directly at the speaker, including over the telephone. Thus, it is unreasonable to find that the Veteran could obtain and maintain substantial gainful employment in either a position requiring manual labor or in an office environment. His combination of functional limitations makes him unable to maintain a position that is in a noisy environment, requires frequent indirect communication, significant concentration, regular interaction with customers or colleagues, moderate ambulation, requires climbing stairs, lifting, bending, or squatting. Given the breadth of his impairments, entitlement to a TDIU is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.