Citation Nr: 21074955 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-24 439 DATE: December 16, 2021 ORDER Entitlement to an effective date of March 30, 2011, for the grant of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's service-connected posttraumatic stress disorder (PTSD) prevented him from obtaining and maintaining substantially gainful employment since March 30, 2011. CONCLUSION OF LAW The criteria for entitlement to an effective date of March 30, 2011, for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. The origin of this appeal arises from an April 2013 rating decision, which granted TDIU based on the Veteran's service-connected heart disability, effective February 22, 2013, the date of his TDIU claim. In October 2021, the Veteran and his spouse testified at hearing before the undersigned Veterans Law Judge; a transcript is in the record. Entitlement to an effective date of March 30, 2011, for the grant of TDIU is granted. The Veteran is currently in receipt of TDIU from February 22, 2013, the date he was assigned a 60 percent rating for his service-connected heart disability (and also the date of his TDIU application). As an initial matter, the RO granted service connection for PTSD in a June 2011 rating decision and assigned a 30 percent disability rating effective October 8, 2008. Following his timely appeal of that decision, the RO increased the rating to 50 percent and then 70 percent, effective October 8, 2008. See June 2012 and April 2013 rating decisions. During the course of his appeal for an increased rating, the Veteran submitted evidence of unemployability. Accordingly, TDIU is considered to have been raised by the record as "part and parcel" of the underlying increased rating claim for PTSD and the Board will specifically focus on whether TDIU is warranted based on PTSD alone. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For the reasons discussed below, the Board finds that the Veteran was unable to obtain and maintain substantially gainful employment from March 30, 2011, due to his service-connected PTSD. TDIU may be assigned where the schedular 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 due to service-connected disabilities. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). For the specific period on appeal (i.e., prior to February 22, 2013), the Veteran's service-connected disabilities include PTSD, rated 70 percent disabling from October 8, 2008; coronary artery disease, rated 30 percent disabling prior to February 22, 2013 (and 60 percent thereafter); vertigo and tinnitus, each rated 10 percent disabling since October 8, 2008; right ear hearing loss, rated 10 percent disabling since December 12, 1969; and right ear otitis media, rated noncompensable since July 8, 1968. The Veteran has met the schedular requirements for TDIU since October 8, 2008. The Board will therefore consider whether the Veteran's service-connected PTSD rendered him unable to secure and maintain substantially gainful employment during the relevant period. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran's level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of the disability on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In his VA Form 21-8940, the Veteran reported that he stopped working full-time on March 30, 2011, due to the effects of his service-connected PTSD and heart disability. He has a high school diploma and was self-employed in sales and service (selling and repairing vending machines). A November 2008 private treatment record notes that the Veteran had not worked a full day since September 4, 2008, the date of his stroke. He had a hard time holding a job and quit previous jobs because of hearing issues. He had worked for himself for the last 21 years. During an April 2011 VA examination, the Veteran reported that anger impacted his business and that he has lost customers because he was unable to control himself. He was only able to work one day a week because of physical health. The examiner concluded that the Veteran's PTSD has interfered with his employment functioning. During a December 2011 private examination, the examiner noted that the Veteran's condition of PTSD continued to deteriorate and was evident in his memory, frequent anxiety attacks, and severe occupational and social impairment. The examiner noted that the Veteran did not have the strength to work or the emotional ability to be involved with other workers. During a February 2013 VA examination, the Veteran reported that he stopped working because he was physically unable to perform the work anymore and did not state that his PTSD symptoms affected his ability to secure and maintain substantially gainful employment. The examiner noted that the Veteran's symptoms seemed to be at the same level as in 2011, which included difficulty tolerating stress, being emotionally unavailable, feeling detached and distant; and difficulties with anger with episodes of uncontrollable rage. The examiner determined that the Veteran closed his business solely due to physical limitations and concluded that the Veteran's ability to sustain and maintain substantially gainful employment was affected by physical symptoms, not his PTSD. In a March 2013 VA examination, the examiner stated that the Veteran could perform sedentary work from a cardiac standpoint, but his other medical conditions, including stroke and lung disease, would make sedentary work unlikely. During his May 2015 Board hearing (related to his then-pending claim for an increased rating for PTSD), the Veteran testified that he stopped working in 2011 but could no longer work after his kidney operation. However, he also testified that he stopped working in 2011 because he was having issues related to his PTSD "and then everything else complicated it." On his application for Social Security Administration (SSA) disability benefits, the Veteran identified several disabilities, including PTSD, which interfered with his ability to work. He reported that owning his own business resulted in a great deal of fatigue, dizziness, and balance problems, and his doctors told him to stop working. Upon review of the above and resolving all doubt in favor of the Veteran, the Board finds that he was precluded from all non-marginal employment beginning March 30, 2011, due to his service-connected PTSD. The Board notes that there is some question as to whether his service-connected PTSD alone affected his ability to maintain and sustain gainful employment, especially in light of his other service-connected and nonservice-connected disabilities. However, the record is clear that the Veteran's PTSD, specifically his anger, affected his ability to maintain clients for his business. See April 2011 VA examination (Veteran reporting lost customers because of his inability to control his anger). Additionally, the December 2011 VA examiner noted that the Veteran's condition of PTSD continued to deteriorate and resulted in severe occupational impairment, specifically addressing the Veteran's inability to be involved with other workers. Despite the February 2013 VA examiner's finding that the Veteran's PTSD did not affect his ability to maintain and sustain gainful employment, the examiner noted the Veteran's difficulties with anger and episodes of uncontrollable rage. (It appears that the Veteran did not discuss his anger in relation to his loss of prior clients during this examination; however, that does not negate the fact that he had previously reported that his anger resulted in a loss of clients). The Veteran also testified during his May 2015 Board hearing that he stopped working in 2011 after a kidney operation but emphasized that he was having issues related to his PTSD and that his other medical issues "complicated it." The Board acknowledges that some VA examiners found that the Veteran's PTSD did not preclude employment and was not the reason for the Veteran closing his own business. However, the Board finds that the impact of his PTSD, combined with given his educational and work history, would prevent him from obtaining and maintaining non-marginal employment. In addition, the determination regarding whether a Veteran would be able to obtain and maintain employment involves consideration not only of the impact of the Veteran's disabilities but of his educational and employment background. Here, the Veteran has a high school education and a majority of his work history exclusively consisted of owning his own business that required interaction with others. The Board therefore finds that during the period on appeal, the Veteran would be precluded from all non-marginal employment by his educational and employment background combined with his psychological disabilities. Generally, the effective date of compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will 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. A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400(o). As stated earlier, TDIU was granted effective February 22, 2013. However, because his TDIU claim was part of his now-resolved claim for a higher initial rating for PTSD, which was pending at the time of the award, the question of whether TDIU can be awarded from the effective date of the award of service connection remains at issue. The Veteran's TDIU application indicates that his PTSD first affected full-time employment on March 30, 2011, which was the date he became too disabled to work. The Board therefore awards TDIU effective March 30, 2011. The Board further notes that entitlement to special monthly compensation (SMC) has been considered as the TDIU is being granted solely on the basis of the PTSD and as such, this satisfies the requirement of a "service-connected disability rated as total" for purposes of SMC. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). However, the Veteran does not have an additional service-connected disability independently rated at 60 percent prior to February 22, 2013, and as such the issue of entitlement to SMC has not been raised by the record. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.