Citation Nr: 21073763 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-49 623 DATE: December 10, 2021 ORDER Entitlement to an effective date of January 12, 2012, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed a claim for increased rating for his service-connected posttraumatic stress disorder (PTSD) that was received on January 12, 2012. 2. Entitlement to a TDIU was established in a November 2014 rating decision, which assigned an effective date of September 28, 2013, the date on which the RO found the claim for entitlement to a TDIU had been received. 3. The Board resolves reasonable doubt in the Veteran's favor by finding that his September 28, 2013, submission of a copy of a letter from his former employer terminating his employment based on his inability to return to work constitutes new and material evidence in relationship to the claim for increased rating for PTSD adjudicated in the November 2012 rating decision. 4. The Veteran did not raise entitlement to TDIU in the year prior to when his claim for increased rating for PTSD was received on January 12, 2012; and the evidence overwhelmingly indicates that he was unable to work starting August 15, 2011, because of vertigo/Meniere's disease, not his PTSD. CONCLUSION OF LAW The criteria for the assignment of an effective date of January 12, 2012, for the grant of entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.156(b), 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from January 1968 to December 1969. He is in receipt of a Combat Infantryman Badge, which denotes his participation in combat. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the claim in a July 2020 decision that the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Joint Motion for Remand, the parties requested that the Court vacate the July 2020 Board decision that denied entitlement to an effective date earlier than September 28, 2013, for the grant of entitlement to a TDIU. In a July 2021 Order, the Court granted the Joint Motion. 1. Entitlement to an effective date earlier than September 28, 2013, for the grant of entitlement to a TDIU Unless otherwise specified, the effective date of an evaluation and award of compensation based on a claim for increase is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a TDIU claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date for TDIU is the date of receipt of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for TDIU is governed by the effective date provisions for increased ratings of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000) (Court applied 38 U.S.C. § 5110(b)(2), which applies to increased rating claims, to a TDIU claim). A TDIU may be assigned on a schedular basis where the schedular rating is less than total, when, in the judgment of the rating agency, 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a claimant to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, since a high rating recognizes that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant can perform the physical and mental acts required by employment, not whether employment can be found. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Where the percentage requirements for TDIU are not met, a total disability rating may be assigned on an extraschedular basis when a veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service or designee. See Bowling v. Principi, 15 Vet. App. at 1, 10 (2001). Entitlement to a TDIU was granted in a November 2014 rating decision. The RO assigned an effective date of September 28, 2013, which was noted to be the day on which it had received a claim for entitlement to a TDIU and when the Veteran submitted a copy of a letter from his former employer terminating his employment based on his inability to return to work. The Veteran seeks an effective date earlier than September 28, 2013, for the award of TDIU benefits, positing dates of August 15, 2011; January 12, 2012; and February 5, 2013, as the dates that should be assigned. Since the Board is granting an effective date of January 12, 2012, there is no need to address the arguments made in support of the February 5, 2013 date. The Veteran asserts an August 15, 2011 effective date is warranted since the claim for entitlement to a TDIU should be considered as part and parcel of his claim for increased rating for PTSD and August 15, 2011, represents the first date on which he was not working. The January 12, 2012, date represents the date on which the Veteran's claim for increased rating for PTSD was received. The procedural history in this case indicates that the Veteran filed a supplemental claim that was received on January 12, 2012, seeking to reopen his previously denied claim for service connection for bilateral hearing loss; to establish increased ratings for PTSD and a shrapnel wound to his left calf; and to establish service connection for vertigo and tinnitus. A November 2012 rating decision increased the rating assigned for PTSD from 30 percent to 70 percent, continued the 10 percent rating assigned for the shrapnel wound to the left calf, granted service connection for tinnitus and bilateral hearing loss, and deferred a decision on the claim for vertigo. Notice of the decision was sent November 30, 2012. The RO issued a rating decision in January 2013 that denied service connection for vertigo, with notice sent January 31, 2012. The Veteran thereafter initiated an appeal of the rating assigned for the bilateral hearing loss in the November 2012 rating decision and the January 2013 rating decision denial of service connection for vertigo, but the only appeal perfected in this case was his appeal of the November 2014 rating decision that granted a TDIU effective September 28, 2013. As noted above, the appeal was denied by the Board in July 2020. The Joint Motion found that the July 2020 Board decision committed an error when it found "there was no evidence received within one year of the November 29, 2012 rating decision, in which the RO increased the veteran's PTSD disability rating to 70 percent, which suggested that the Veteran's PTSD rendered him unemployable (and thus requires consideration as part of the Veteran's PTSD increased rating claim) under C.F.R. § 3.156(b)" because it failed to address evidence that the formal claim for TDIU was received within one year of the November 2012 rating decision. Specifically, in a November 2014 rating decision granting TDIU, VA found that the formal application for TDIU was received on September 28, 2013. The date of receipt of the formal TDIU application is germane to the effective date for TDIU because the formal application specifically lists PTSD as one of the reasons the Veteran was unemployable, and if received within one year of the 2012 rating decision, it could have constituted new and material evidence under C.F.R. § 3.156(b). The Joint Motion requested remand so that the Board could address the RO's finding that the formal application for TDIU was received on September 28, 2013, and whether it constitutes new and material evidence raised within one year of the 2012 rating decision that would require the Board to consider TDIU as part of the increased rating claim for PTSD pursuant to C.F.R. § 3.156(b) and Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (holding that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for the disability, it is part of the claim for benefits for the underlying claim"). Resolving doubt in the Veteran's favor, the Board finds that the Veteran's submission of the copy of a letter from his former employer, BAE Systems, terminating his employment based on his inability to return to work that was received on September 28, 2013, constitutes new and material evidence received within one year of the November 2012 rating decision that increased the rating assigned for PTSD to 70 percent. See 38 C.F.R. § 3.156 (b). The Board notes that there is no indication from the letter as to why the Veteran was unable to return to work, merely that he had taken a personal leave of absence from December 6, 2011 through January 6, 2012, but that as of January 9, 2012, he was still unable to return to work and perform the essential functions of his position as a motor vehicle operator with or without reasonable accommodations. However, the January 2014 rating decision also indicated that a formal claim for a TDIU (VA Form 21-8940) was received on September 28, 2013, and this form cites PTSD and vertigo as the disabilities preventing the Veteran from securing or following any substantially gainful occupation. Therefore, the Board is resolving all reasonable doubt in the Veteran's favor in finding that new and material evidence was received within one year of the November 2012 rating decision that granted an increased rating for PTSD. Given the foregoing, an effective date of January 12, 2012, is assigned for the grant of a TDIU since this date represents the date on which the Veteran's claim for increased rating for PTSD was received and adjudicated in the November 2012 rating decision. The Board has considered whether an effective date earlier than January 12, 2012, is warranted. As noted above, the Veteran asserts an August 15, 2011 effective date should be assigned since the claim for entitlement to a TDIU should be considered as part and parcel of his claim for increased rating for PTSD and August 15, 2011, represents the first date on which he was not working. VA regulations provide that the effective date for increased rating claims is the date of receipt of the claim or the date entitlement arose, whichever is later; however, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o) and (o)(2). In this case, the Board must determine whether Rice was implicated in the year prior to January 12, 2012. As cited to in the Joint Motion, Rice is implicated when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for the disability, which, in this case, is the claim for increased rating for PTSD received on January 12, 2012. The Board does not find that Rice was implicated at any time between January 12, 2011 and January 12, 2012. Rather, the Veteran consistently reported that he was unable to work because of his vertigo and/or diagnosed Meniere's disease, not his PTSD. In fact, the formal TDIU application, which the RO stated was received on September 28, 2013, is the first time the Veteran indicated that his service-connected PTSD prevented him from securing or following any substantially gainful occupation. Prior to this date, the Veteran only reported he had stopped working in 2011 because of medical problems unrelated to PTSD. See October 2011 Vet Center Record (unable to go to work because of vertigo); November 2011 private medical record (he reported being off work since September because of vertigo). Records dated after January 12, 2012 also indicate that the Veteran consistently reported that he was unable to work because of his vertigo and/or diagnosed Meniere's disease, not his PTSD. See March 2012 VA record (diagnosed with Meniere's disease which caused him to be lightheaded with room spinning; was recurring so frequently that he lost his job; stated he was no longer able to drive his truck); April 2012 VA record (Veteran was medically diagnosed with Meniere's disease, a debilitating illness that causes episodes of dizziness and tinnitus; he expressed sadness about this disease and the limitations imposed on his ability to work; he understands that with this diagnosis he cannot re-qualify for a CDL license; he also admitted "Nobody going hire me."); April 2012 Vet Center record (he was forced to give up his job as a driver because of onset of vertigo symptoms); July 2012 VA PTSD examination (he had to leave his job because he suffers from vertigo and could no longer drive a truck safely); January 2013 private treatment record (overall a bit better following assessment of dizziness and Meniere's disease but does not feel that he can return to work driving a truck). Since Rice was not implicated prior to January 12, 2012, and the evidence overwhelmingly indicates that the Veteran was unable to work starting in August 2011 because of vertigo/Meniere's disease, not his service-connected PTSD, an effective date earlier than January 12, 2012, to include the August 15, 2011 date representing the first date on which the Veteran was not working, is not warranted. In sum, after resolving all reasonable doubt in the Veteran's favor, the Board finds he is entitled to an effective date of January 12, 2012, for the grant of a TDIU. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.