Citation Nr: 21007807 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 07-32 063 DATE: February 10, 2021 ORDER Entitlement to an April 28, 2006 effective date for the award of a total disability rating based on individual unemployability (TDIU) is GRANTED. FINDING OF FACT On and after April 28, 2006, the Veteran’s service-connected disabilities precluded him from securing and/or following a substantially gainful occupation. CONCLUSION OF LAW On and after April 28, 2006, the criteria are met for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Unites States Marine Corps from September 1961 to July 1964. Unfortunately, the Veteran passed away in September 2014. In April 2020, the Veteran’s wife was substituted as the Appellant for the claim for an effective date earlier than March 5, 2013 for the award of a TDIU. EFFECTIVE DATE Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will 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). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107 (b). Entitlement to April 28, 2006 effective date for the award of a total disability rating based on individual unemployability (TDIU) is granted. On April 28, 2006, the Veteran submitted a VA Form 21-8940. Thereby, the Veteran initiated a claim for a TDIU rating. The Veteran relayed that all of his service-connected disabilities resulted in cessation of work in May 1995. The Veteran posited that, “the stresses of teaching continued to aggravate my psychological disability. I also had problems with hearing students. These stressors continued to be aggravated by a sudden disabling heart condition which lead to my total disability.” 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 (West 2014). 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. 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). A 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. 38 C.F.R. § 4.16 (a). 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. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Board notes that the Veteran was service connected for multiple disabilities during the claim period. The disabilities were depression, bilateral shoulders, bilateral hearing loss, and migraine headaches. Throughout the claim period, the Veteran maintained an overall 80 percent disability rating for the service-connected disabilities. In April 2006, the Veteran underwent a VA examination that addressed the severity of mental disorders. The VA examiner noted a diagnosis for major depressive disorder. The VA examiner reported a 35 GAF score. The Veteran reported that “I feel useless.” For current symptoms, the VA examiner reported anger, suicidal ideation, hopelessness, poor appetite, poor sleep, low energy, guilt, poor concentration and short-term memory, social isolation, poor insight, and obsessive-compulsive behavior. The VA examiner reported that the Veteran retired from teaching in 1995 due to cardiomyopathy. The VA examiner relayed that, “in addition to affecting him occupationally and educationally, the Veteran’s grief (from losing a 2-month-old son to SIDS during Marine Cops service) has also been exacerbated by the loss to mental retardation of another baby boy, his nephew. He is losing his sister to dementia and therefore not immediately evident, the Veteran is suffering a series of losses now, which exacerbate his original grief reaction.” In April 2006, the Veteran underwent a VA examination that addressed the severity of his joint disorders. The VA examiner noted the Veteran worked as the owner of a retail store in Hawaii until January 1995; at that time, the acute myocardial infarction led to retirement. The Veteran reported that his former occupation was compromised by the handling of heavy supplies. The VA examiner noted diagnoses for posttraumatic bilateral shoulder tendonitis. For the right shoulder, the Veteran demonstrated the following range of motion (ROM) in degrees: forward flexion 84, abduction 160, external rotation 75, and internal rotation 90. For the left shoulder, the Veteran demonstrated the following ROM (in degrees): forward flexion 86, abduction 74, external rotation +90, and internal rotation +90. The VA examiner did not opine regarding the impact of the Veteran’s bilateral shoulder disabilities on the ability to function in the workforce. In April 2006, the Veteran underwent a VA examination that addressed the severity any currently endured hearing loss. The VA examiner diagnosed high frequency sensorineural hearing loss, bilaterally. The VA examiner did not opine regarding the impact of the Veteran’s bilateral hearing loss on the ability to function in the workforce. In July 2006, the Veteran’s records from the Social Security Administration (SSA) were associated with the claims file. After review, the Board notes that the SSA found the Veteran disabled because of cardiomyopathy and essential hypertension conditions. In December 2008, the Veteran underwent a VA examination that addressed the severity of mental disorders. The VA examiner noted a diagnosis for recurrent major depressive disorder. The Veteran reported that he did not know if he could work because health, poor vocabulary, and hearing. The Veteran reported that he could not be a greeter at Walmart because of his health problems. The Veteran reported that health problems prevented working in the garden. The VA examiner reported a current 52 GAF score. The VA examiner opined that, “(n)othing is indicated in his notes by treatment providers as well as in his report today that his depression is at such an extreme extent that he cannot work, particularly if employed in a loosely supervised situation with little interaction with others.” In December 2008, the Veteran underwent a VA examination that addressed the severity of the service-connected shoulder disabilities. The VA examiner noted the Veteran endured progressively severe pian and dysfunction with both shoulders. The Veteran reported constant 4/10 bilateral shoulder pain, and 8/10 flare-ups occurring once a day and lasting two hours. The Veteran reported an inability to work overhead with his arms. The Veteran also reported an inability to lift, reach, or throw with either arm. The VA examiner noted pain and limitation of motion in both shoulders. The VA examiner did not opine regarding the impact of the Veteran’s bilateral shoulder disabilities on the ability to function in the workforce. In December 2008, the Veteran underwent a VA examination that addressed the severity the service-connected bilateral hearing loss. The VA examiner diagnosed high frequency sensorineural hearing loss, bilaterally. The VA examiner did not opine regarding the impact of the Veteran’s bilateral hearing loss on the ability to function in the workforce. In July 2010, the Veteran underwent a VA examination that addressed the severity of mental disorders. The VA examiner noted a diagnosis of recurrent major depressive disorder. The VA examiner noted a 50 GAF score. The VA examiner opined that, “(a)lthough some symptoms of depression would occur in a work setting, principally the effects of sleep disturbance including some lapse of focus and concentration, in the opinion of the examiner if the Veteran’s service-connected depressive disorder were the only variable under consideration, it would not preclude at this time all types of employment. The Veteran, as stated earlier, remains symptomatic for depression and in the absence of continued treatment from a mental health treatment provider, a comment on the prognosis is likely premature.” In July 2010, the Veteran underwent a VA examination that addressed the severity of the service-connected shoulder disabilities. The VA examiner noted a diagnosis for bilateral shoulder degenerative arthritis and rotator cuff tears. The VA examiner opined that, “with reference to the shoulders, he unable to do any work involving reaching above the shoulder level at all, lifting or carrying more than light objects and non-repetitively, reaching out or to the side repetitively.” In July 2010, the Veteran underwent a VA examination that addressed the severity of the service-connected bilateral hearing loss disability. The VA examiner noted mild to severe bilateral sensorineural hearing loss. The VA examiner noted that the Veteran was not employed. The VA examiner noted that the Veteran’s bilateral hearing loss would impact occupational activities. In March 2013, the Veteran underwent a VA examination that addressed the severity of the service-connected acquired psychiatric disability. The VA examiner noted a diagnosis for recurrent, severe major depressive disorder. The VA examiner reported a 45 GAF score. The VA examiner opined that the Veteran’s psychiatric diagnosis resulted in occupational and social impairment with deficiencies in most areas. The VA examiner also opined that, “his ability to respond appropriately to changes in the work setting would be moderately to severely difficult.” In March 2013, the Veteran underwent a VA examination that addressed the severity of the bilateral shoulder disabilities. The VA examiner noted diagnoses for bilateral should cuff tears, useless shoulders. The Veteran reported daily, severe shoulder pain that lasted for hours. The VA examiner opined that the Veteran could not work or lift overhead with his arms. In March 2013, the Veteran underwent a VA examination that addressed the severity of the bilateral hearing loss disability. The VA examiner noted that the Veteran demonstrated bilateral hearing loss. The VA examiner opined that the Veteran’s hearing loss impacted ordinary conditions of daily life, to include the ability to work. In April 2013, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted entitlement for a TDIU. The AOJ noted that the Social Security Administration found the Veteran was disabled on January 1, 1995, because of a heart condition and hypertension, which are not service-connected disabilities. The AOJ noted that the Veteran’s service-connected depression, right shoulder, left shoulder, hearing loss, and migraine headache disabilities met the schedular requirements for a TDIU. The AOJ concluded that the Veteran’s service-connected disabilities did not prevent substantially gainful employment until March 5, 2013; at that time, a VA examiner reported that the Veteran’s depression produced a moderate to severe limitation on the ability to function in the workplace. In July 2014, the Board addressed the Veteran’s claim for a TDIU rating before March 5, 2013. At that time, the Board remanded the Veteran’s claim to the AOJ for issuance of a statement of the case (SOC). Upon deliberate review of the evidence within the Veteran’s claims file, the Board finds that an effective date of April 28, 2006 is warranted for a TDIU. The Board observes that the April 2006, December 2008, July 2010, and March 2013 VA examiners reported that the symptoms of service-connected disabilities would impact the Veteran’s ability to obtain and/or maintain substantially gainful employment. Ultimately, the Board concludes that preponderance of the evidence supports that the combined impact of the Veteran’s service connected disabilities prevented substantially gainful employment on and after April 28, 2006. Based on the Veteran’s significant service connected mental health difficulties and the pain and limitations caused by his service connected orthopedic disabilities, the Board finds believes that the Veteran would not have been able to obtain or maintain gainful employment from the time he filed his claim in April 2006 and his death. Consequently, the Appellant’s claim for an earlier effective date for the TDIU must be granted effective April 28, 2006. DAVID L. WIGHT 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.