Citation Nr: 21076285 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-11 087 DATE: December 23, 2021 ORDER An earlier effective date of June 2, 2016 for a total disability rating based on individual unemployability due to the service-connected posttraumatic stress disability (TDIU) is granted. REMANDED Entitlement to an earlier effective date than June 2, 2016 (from October 1, 2014 to June 2, 2016) for TDIU is remanded for referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). FINDING OF FACT Due to service-connected disability, the Veteran is rendered unable to maintain (follow) substantially gainful employment from June 2, 2016, the date that the service-connected disabilities met the threshold rating percentage requirements for TDIU eligibility under 38 C.F.R. § 4.16(a). CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an earlier effective date for TDIU of June 2, 2016 have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16; Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to November 1973. The Veteran filed a claim for TDIU on August 1, 2016 during the pendency of a claim for service connection for posttraumatic stress disorder (PTSD), which service connection claim had been filed on June 2, 2014. The instant TDIU matter is on appeal from a November 2017 rating decision, which granted a TDIU from August 1, 2016, the date of the TDIU claim. The Veteran filed a notice of disagreement in December 2017, appealing the effective date. A statement of the case was issued in February 2018, denying an earlier effective date. The Veteran filed a substantive appeal (VA Form 9) in February 2018. The Veteran testified in Phoenix, Arizona, at a virtual Board hearing in September 2021 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1. Entitlement to an Earlier Effective Date of June 2, 2016 for TDIU is Granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16 (a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16 (b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17 (a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38C.F.R. §4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In terms of effective date, under Chapter 51 of Title 38 of the United States Code, the effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Rice attachment preserves the potential effective date to the date of claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, TDIU was raised on August 1, 2016 during the pendency of an appeal for service connection for PTSD. The claim for service connection for PTSD was filed on June 2, 2014, so when service connection was granted, the initial rating was made effective June 2, 2014; thus, Rice preserves the potential TDIU effective date of June 2, 2014, the date of the PTSD initial rating to which the TDIU issue attached. In a November 2017 rating decision, the RO granted a TDIU from August 1, 2016, the date the TDIU claim was filed. The Veteran appealed for an earlier effective date for the grant of TDIU prior to August 1, 2016. During the September 2021 Board hearing, the Veteran testified that he actually became too disabled to work on October 1, 2014 because of the service-connected PTSD symptoms. The Board will address the claim for an earlier effective date for TDIU prior to August 1, 2016 in two parts: from October 1, 2014 to June 2, 2016, and from June 2, 2016 to August 1, 2016. The period from October 1, 2014 to June 2, 2016 will be addressed in the remand section, and the period from June 2, 2016 to August 1, 2016 is addressed on the merits below. According to the August 2016 Veteran's application for increased compensation based on unemployability (VA Form 21-8940), the Veteran reported that he was self-employed as a charter boat captain from September 1992 to November 2011. The Veteran reported that he became too disabled to work on November 1, 2011. The Veteran has not tried to obtain employment since he became too disabled to work. The Veteran also reported that he completed 4 years of high school and 4 years of college. After a review of all the evidence, the Board finds that criteria for a TDIU are met at least as of June 2, 2016, the date that the service-connected disabilities met the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16(a). The Veteran was service connected and rated for the following disabilities from June 2, 2016: PTSD rated at 70 percent from June 2, 2016 and tinnitus rated at 10 percent from June 2, 2014. The service-connected disabilities meet the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16(a). Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for an earlier effective date for TDIU from June 2, 2016 have been met. REASONS FOR REMAND 2. An earlier effective date than June 2, 2016 (from October 1, 2014 to June 2, 2014) is remanded. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled; therefore, rating boards should submit to the Director, Compensation and Pension Service, for consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). As previously explained, TDIU was raised on the record during the pendency of an appeal for service connection for PTSD, so for effective date purposes attached to the initial rating for PTSD from June 2, 2014. The relevant underlying claim for service connection for PTSD was filed on June 2, 2014. See June 2, 2014 Application for Compensation or Pension. Rice preserved the potential TDIU effective date of June 2, 2014, provided the other criteria for TDIU are met. During the January 2021 Board hearing, the Veteran testified that the service-connected PTSD disability precluded him from working as of October 1, 2014. The Veteran was service connected and rated for the following disabilities from October 1, 2014 to June 2, 2016: PTSD rated at 50 percent from June 2, 2014 to June 2, 2016 and tinnitus rated at 10 percent from June 2, 2014. The service-connected disabilities do not meet the threshold requirements for TDIU eligibility under 38 C.F.R. § 4.16(a). For the period between October 1, 2014 to June 2, 2016, there is evidence that suggests that the Veteran's service-connected PTSD may have rendered him unemployable. During the September 2014 VA examination, the Veteran reported that the service-connected PTSD made the Veteran unable to work as a charter boat captain. The September 2014 VA examination report reflects that the Veteran experienced the following symptoms: anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work and a worklike setting. The September 2014 VA examiner also notably assessed that the Veteran exhibited irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, persistent negative emotional state, and feelings of detachment or estrangement from others. Medical records from the Social Security Administration indicate that the Veteran is receiving benefits, in part, for the service-connected PTSD. The Veteran credibly testified during the September 2021 hearing that the PTSD precluded him from working as of October 1, 2014. Based on the foregoing, the Board finds that the issue of an earlier effective date for a TDIU for the period from October 1, 2014 to June 2, 2016 has been raised, so should be remanded for referral to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b). The VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service should specifically adjudicate the issue of a TDIU under 38 C.F.R. § 4.16(b) for the period from October 1, 2014 to June 2, 2016. The issue of TDIU for the period from October 1, 2014 to June 2, 2016 is REMANDED for the following action: Refer the case to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service for adjudication of a TDIU under 38 C.F.R. § 4.16(b) for the period from October 1, 2014 to June 2, 2016. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.