Citation Nr: A21020570 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200522-87861 DATE: December 27, 2021 ORDER Entitlement to an effective date earlier than October 14, 2019, for the award of an increased, 100 percent, rating for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is granted. FINDINGS OF FACT 1. The Veteran was initially awarded service connection for PTSD by way of a July 2018 rating decision, evaluated as 70 percent disabling, effective from May 31, 2017; the Veteran did not disagree with that decision and no new and material evidence was received within a year of that decision. 2. On October 14, 2019, the Veteran claimed entitlement to TDIU due to PTSD and was given a VA examination in November 2019, to report of which contained findings that supported an award of a 100 percent rating for PTSD; it is not factually ascertainable that an increase in disability occurred in the one-year period prior to October 14, 2019. 3. The evidence supports a finding that the effects of the Veteran's service-connected PTSD are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 14, 2019, for the assignment of a 100 percent rating for service-connected PTSD as not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160, 3.400. 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1992 to July 1994. This appeal before the Board of Veterans' Appeals (Board) arose from a December 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that was adjudicated under the Appeals Modernization Act (AMA). In that decision, the RO increased the Veteran's PTSD rating from 70 to 100 percent, effective October 14, 2019. The AOJ also determined that the issue of entitlement to a TDIU was moot. In May 2020, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), electing Direct Review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38C.F.R. § 20.301. In the VA Form 20182, the Veteran's attorney disagreed with the effective date assigned for the Veteran's 100 rating for PTSD, asserting that the Veteran was entitled to a 100 percent rating, effective from May 31, 2017. The Veteran's attorney also argued that entitlement to a TDIU was not moot. As such, the Board has framed the issues on appeal as entitlement to an effective date earlier than October 14, 2019, for the award of a 100 percent rating for TDIU and entitlement to a TDIU. Effective Date Regarding the assignment of effectives dates, the law provides, generally, that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. That is, the effective date of an award "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). The Board notes that an exception to the general rule exists for increased rating claims. In a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim"); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an "increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Evidence relevant to the issue of entitlement to an effective date prior to October 14, 2019, for the award of an increased, 100 percent, rating for PTSD reflects that on May 31, 2017, the Veteran submitted an intent to file a claim for compensation. In August 2017, the Veteran submitted a VA Form 21-526EZ wherein he claimed service connection for, among other things, PTSD. Via rating decision dated in October 2017, the AOJ denied service for PTSD, to include depression. Thereafter, in February 2018, the Veteran submitted a PTSD stressor statement and in June 2018, he was afforded a VA PTSD examination. Under 38 C.F.R. § 3.156(b), this evidence constituted new and material evidence received within a year of the October 2017 rating decision which prevented the October 2017 rating decision from becoming final. 38 C.F.R. § 3.156(b); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In July 2018, the AOJ issued a rating decision wherein it granted service connection for PTSD, evaluated as 70 percent disabling, effective May 31, 2017. Notification of that decision was sent to the Veteran the same month. In the decision notification letter, the Veteran was notified that he had one year to submit an NOD if he disagreed with any aspect of the July 2018 rating decision. A review of the claims file fails to show that the Veteran filed an NOD within the one-year timeframe that was identified by the AOJ. Further, no new and material evidence was received within a year of notification of that decision, and no other exception to the rule of finality applies. Accordingly, the July 2018 rating decision constitutes a final decision regarding the award of service connection for PTSD, to include the initially assigned disability rating. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. The record then shows that on October 14, 2019, the Veteran submitted a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) wherein he claimed entitlement to, among other things, TDIU due to PTSD. In November 2019, the Veteran was afforded a review PTSD examination. At the time of that examination, the Veteran reported that he was not working and had basically not worked since his discharge from service. Upon review of the record and examination of the Veteran, the VA examiner found that the Veteran's PTSD resulted in total occupational and social impairment. In December 2019, the AOJ issued a rating decision wherein it increased the Veteran's PTSD rating from 70 to 100 percent, effective October 14, 2019. As noted above, in May 2020, the Veteran filed an NOD in which he argued for an effective date of May 31, 2017, for his award of a 100 percent rating for PTSD. As discussed, the July 2018 rating decision awarding service connection for PTSD and assigning an initial 70 percent rating became final. Given the finality of the July 2018 rating decision, the Veteran may not now assert that he is entitled to a 100 percent rating for his service-connected PTSD effective from the May 2017 date of his initial claim for service connection for such. This is so because any subsequent request for an effective date earlier than the final July 2018 rating decision for a rating greater than 70 percent for PTSD constitutes an impermissible free-standing effective-date claim. See Rudd v. Nicholson, 20 Vet. App. 296, 298 (2006). If the Veteran wishes to challenge the outcome of the July 2018 rating decision, to include the disability rating assigned therein, he may file a motion for revision of the decision based on clear and unmistakable error with the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006). Although the Veteran may not now seek an effective date of May 31, 2017, for the award of his 100 percent rating for PTSD, as noted above, the effective date of a rating increase may date back one year prior to the date that the claim for increase was filed, "if it is ascertainable that an increase in disability had occurred" within that 1-year period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston, supra. This rule only applies if the claimed increase in severity occurred during the year prior to the application for an increased evaluation. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, if it is shown that the Veteran's PTSD increased in severity in the year prior to October 2019, he may be entitled to an effective date earlier than October 14, 2019, but not earlier than the final July 2018 rating decision. Here, the evidence fails to demonstrate that the Veteran's PTSD resulted in total occupational and social impairment in the year prior to the October 2019 claim. Indeed, the evidence of record shows that the Veteran has not been able to hold employment since 2017, more than one year prior to the October 2019 claim, and VA treatment records fail to show the onset of total social impairment in the year prior to October 2019. In short, absent some evidence demonstrating that the Veteran's PTSD increased in severity in the one-year prior to the October 2019 claim, the Board cannot conclude that an effective date earlier than October 14, 2109, is warranted for the assignment of a 100 percent rating for PTSD. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston, supra. TDIU As noted above, in the December 2019 decision from which this appeal stems, the AOJ determined that the issue of entitlement to a TDIU is moot. Specifically, the AOJ stated that the issue is moot because the Veteran's "service-connected disabilities are evaluated as 100 percent disabling and no potential entitlement to an earlier effective date for a total disability evaluation based on a grant of individual unemployability is warranted by the evidence of record." Regarding the issue of entitlement to a TDIU, VA treatment records dated in December 2017 show that the Veteran then reported that was not employable. The evidence of record contains a March 20, 2018, Report of General Information, wherein it is noted that the Veteran reported that, "as a result of his condition and continuous pain, . . . it is hard for him to function on a daily basis and obtain gainful employment." In this regard, the Board notes that although it is well established that the issue of entitlement to a TDIU is part and parcel of claim for an increased rating, the United States Court of Appeals for Veterans Claims has also indicated that an initial service connection claim can include a TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (stating that "it is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on that disability (either overtly stated or implied by a fair reading of the claim or of the evidence of record)."). Given the above statements, the Board finds that the issue of entitlement to a TDIU was raised as part of the Veteran's initial claim for service connection for PTSD, which claim was filed on May 31, 2017. However, as that issue was not explicitly adjudicated by the AOJ in the July 2018 decision granting service connection for PTSD, and because the Board cannot conclude that it was implicitly denied therein, the Board finds that the issue of entitlement to a TDIU remained pending and is, therefore, not moot. Regarding entitlement to a TDIU, the law provides that a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). In the instant case, the Veteran has a combined disability rating of 70 percent or higher since May 31, 2017, with PTSD evaluated at least 70 percent disabling since that time. Thus, he has met the criteria for a schedular TDIU since May 31, 2017. See 38 C.F.R. § 4.16 (a). Entitlement to a TDIU may therefore be established if the Veteran is shown to be unable to secure or follow substantially gainful employment as a result of his service-connected disability or disabilities. Based on the evidence of record, the Board finds that the disabling effects of the Veteran's PTSD would more likely than not render the Veteran unable to obtain or maintain substantially gainful employment. In so finding, the Board points out that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16(a)). Here, the evidence shows that prior to entering the military, the Veteran worked as a part-time grill cook and helped his father with landscaping. After the military, the Veteran reported that he tried to return to work in landscaping, but that it lasted only a few months. He stated that he then had several different brief jobs, but that he had trouble getting along with coworkers and holding jobs. The Veteran estimated that hs longest job was approximately 14 months, and VA treatment records dated in January 2019 indicate that the Veteran had not worked for approximately two years. When examined in November 2019, the VA examiner indicated that the Veteran's then-current level of PTSD-related anxiety, depression, irritability, sleep disturbances, attention and concentration issued, and difficulty handling stress and being around others would make it highly unlikely that the Veteran would be able to maintain himself in fulltime or even steady employment. Comparing the symptomatology present at the time of the November 2019 VA examination with that present when the Veteran was examined in June 2018, the Board noted that many of the symptoms present in November 2019 were endorsed at the time of the June 2018 examination. Overall, in consideration of the Veteran's employment history, and education and vocational attainment, the Board finds that the Veteran's service-connected PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. Entitlement to a TDIU is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. It appears that the Veteran stopped working in or around January 2017. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.") . KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.