Citation Nr: A21020626 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210407-150752 DATE: December 29, 2021 ORDER An effective date of November 16, 2016, for the grant of a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. An effective date of November 16, 2016 for basic eligibility to Dependents' Educational Assistance (DEA) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. VA received the Veteran's intent to file on November 16, 2016. 2. VA received the Veteran's formal claim for TDIU on November 30, 2016. 3. Resolving reasonable doubt in favor of the Veteran, his service-connected posttraumatic stress disorder (PTSD) and bilateral hearing loss, when considered together, have precluded him from obtaining or maintaining substantially gainful employment since at least November 16, 2016. 4. The Veteran's TDIU rating is effective November 16, 2016, and the DEA may be allowed on the same date. CONCLUSIONS OF LAW 1. The criteria for TDIU, from November 16, 2016, forward, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for the award of DEA, from November 16, 2016, forward, have been met. 38 U.S.C. §§ 3500, 3501, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to December 1968, and has been awarded the Combat Infantryman Badge, among other decorations. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. VA received the Veteran's intent to file a claim on November 16, 2016. His formal claim for TDIU was received on November 30, 2016. As such, the period on appeal begins on November 16, 2016. A March 2017 rating decision denied the claim. The Veteran disagreed with that decision and this appeal ensued. During the development of the claim, a February 3, 2021 rating decision granted TDIU, effective August 1, 2020, the date entitlement arose. VA then received the Veteran's request for higher-level-review in February 2021. The Veteran disagreed with the effective dates for the award of TDIU and for the award of DEA. The Regional Office (RO) then issued a higher-level-review rating decision on February 23, 2021, denying the earlier effective date claims. The Veteran opted into the AMA by filing a VA Form 10182: Board Appeal (Notice of Disagreement), selecting Direct Review, following the issuance of the February 23, 2021 higher-level review rating decision. Of note, the April 7, 2021 VA Form 10182 serves as the decisional document which closes the record for adjudication. That is, by selecting Direct Review in this document, the Veteran accepted that the Board's review would be limited to evidence that was of record as of February 23, 2021, regarding the effective date claims on appeal. Earlier Effective Date for TDIU and DEA The Veteran asserts that he is entitled to an earlier effective date for the grant of TDIU and DEA. Specifically, he asserts that he is entitled to TDIU and DEA, effective November 16, 2016, the date of claim. He asserts that he has been unemployed since 2015, when he sold his commercial fishing business. The Veteran's combined disability ratings meet the schedular requirements for TDIU for the entire period on appeal; he has two or more service-connected disabilities, and one is rated at 70 percent, with a combined rating of 70 percent. 38 C.F.R. § 4.16 (a). The effective date of an award of TDIU will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (o)(1). The effective date of an award of TDIU may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability causing unemployability had occurred, if the application for TDIU is received within one year from that date. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In general, three possible dates may be assigned depending on the facts of a case, (1) if an increase in disability causing unemployability occurs after the claim is filed, the date that the increase causing unemployability is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability causing unemployability precedes the claim by a year or less, the date that the increase causing unemployability is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability causing unemployability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for TDIU was received and, if possible, (2) when the increase in disability causing unemployability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Where a claimant (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As such, an allegation of unemployability and/or the submission of evidence indicating that the Veteran cannot work received in connection with a claim for an increased rating are sufficient to raise a claim for TDIU. If a claimant's rated disabilities fail to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extra-schedular rating is for consideration where the claimant is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. The Veteran's VA treatment notes show that shortly after moving from Alaska to Ohio, he sought treatment at a VA emergency room, feeling depressed. See VA Treatment Record dated September 4, 2016. A few days later, he sought mental health treatment from his local VAMC. He reported at his first appointment that he enjoyed living in remote Alaska and since moving, his PTSD was worse because his primary means of coping (avoidance through work) was gone. See VA Treatment Record dated November 20, 2016. The records show that he had regular mental health sessions during the period on appeal, but do not appear to discuss his employability. The Veteran was afforded VA examinations in September 2017 and November 2019 for the service-connected bilateral hearing loss. He did show hearing loss for VA purposes, but both VA examiners opined that his hearing loss would not affect his ability to work. The Veteran was afforded a VA examination for his acquired psychiatric disability in August 2015. The examiner reported that his psychiatric symptoms caused clinically significant impairment in social, occupational, and other areas of functioning. The examiner noted that the Veteran's acquired psychiatric disability caused chronic sleep impairment and the Veteran reported that his lack of energy due to erratic sleep patterns impaired his ability to work safely. The Veteran was afforded a VA examination for his acquired psychiatric disability in September 2017. Regarding the Veteran's ability to work, the examiner reported; his ability to respond appropriately to coworkers, supervisors, or the general public is considered moderately impaired, his ability to accept supervision is considered markedly impaired, his ability to be flexible in the work setting was considered markedly impaired, and his ability to work in groups was considered profoundly impaired. The Veteran was afforded a VA examination for his acquired psychiatric disability in October 2019, but the examiner did not provide any insight into the Veteran's employability. The Veteran provided a private examination report from a private Health Service Provider in Psychology (HSPP) in August 2019. After an in-person examination and a review of the Veteran's claims file, the HSPP opined that his service-connected acquired psychiatric disability prevents him from maintaining substantially gainful employment. She explained that the Veteran is not getting enough restful sleep and feeling fatigued nearly every day would be a safety issue in the workplace. He also reported struggling with both occupational and social relationships and struggling with anxiety. The examiner explained that poor interpersonal skills would make appropriate work interactions difficult, and feelings of anxiety would be a safety issue on the job. He also had physical signs of depression, such as extreme fatigue, hypersomnia, appetite issues, weight fluctuation, and emotional outbursts. Additionally, suicidal ideation causes problems within the workplace through a manifestation of fatigue and lack of concentration. To bolster his claim, the Veteran has provided information regarding his earnings from 2010-2014. The Board acknowledges that this was prior to the period on appeal. However, the information is informative because it shows that his earnings would be considered marginal employment. He reported that he earned $17,954 in 2010; $10,750 in 2011; $4,770 in 2012; $356 in 2013; and $1,658 in 2014. The U.S. Census tables show that his earnings did not exceed the poverty threshold beginning in 2012. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Here, the Board finds that the weight of the evidence shows that the Veteran has been precluded from obtaining or maintaining substantially gainful employment, during the period on appeal. The evidence also shows that shortly prior to the period on appeal, although he was employed, it appears to be marginal. Regarding the period on appeal, the August 2015 VA examiner noted that the Veteran's acquired psychiatric disability caused chronic sleep impairment and the Veteran reported that his lack of energy due to erratic sleep patterns impaired his ability to work safely. Further, the September 2017 VA examiner noted numerous, significant occupational deficiencies and the private HSPP opined that his service-connected acquired psychiatric disability precluded him from obtaining or maintaining substantially gainful employment. The Board acknowledges that the private opinion came about three years after the Veteran applied for TDIU rating. However, his disability picture appeared to remain stable during the period on appeal. Regarding his hearing loss, the Board acknowledges that the VA examiners of record have opined that his hearing loss would not affect his ability to work. The Board recognizes that the Veteran's hearing is rated as noncompensable. However, the nature of his work, commercial fishing, would require communication between shipmates and the Board finds that having any difficulty hearing would impair the ability to work safely. The Board has also considered the Veteran's educational and training history and his work experience. The Veteran indicated that he was a commercial fisherman for 30 years. Here, the Board believes that the Veteran's service-connected acquired psychiatric disability and bilateral hearing loss does prevent him from similar employment. His acquired psychiatric disability makes it difficult for him to sleep, which causes him difficulty with maintaining safety aboard a ship, and he has been shown to have difficulty working with others, accepting supervision, the ability to be flexible in the work setting, and the ability to work in groups. The Board finds that the aforementioned occupational deficiencies, in conjunction with his hearing difficulties, precludes the Veteran from obtaining or maintaining substantially gainful employment. Given the foregoing, the Board finds that the Veteran was unable to maintain substantially gainful employment, during the entire period on appeal, which begins on November 16, 2016. Accordingly, an effective date of November 16, 2016, for TDIU, is granted. DEA Survivors' and Dependents' Educational Assistance (DEA) is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of DEA exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. Regarding entitlement to an earlier effective date for DEA benefits pursuant to 38 U.S.C., Chapter 35, the Board finds that an effective date of November 16, 2016, for basic eligibility for Chapter 35 DEA benefits, is warranted. The Veteran is awarded eligibility to DEA effective November 16, 2016, based upon the finding that he was permanently unable, as of that date, to secure or follow a substantially gainful occupation. The Board finds that November 16, 2016 is the earliest date on which the Veteran has established eligibility for Chapter 35 benefits. Accordingly, an effective date of November 16, 2016, for DEA benefits, is granted. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.