Citation Nr: 21011878 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-09 192 DATE: March 2, 2021 ORDER Entitlement to an effective date of October 15, 2000, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In an October 1987 rating decision, the agency of original jurisdiction (AOJ) awarded compensation pursuant to 38 U.S.C. § 351 for atrophy, right testicle and assigned an initial 10 percent disability rating, from November 27, 1984; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year. 2. In an April 1988 rating decision, the AOJ denied entitlement to a rating in excess of 10 percent for atrophy, right testicle; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year. 3. An informal claim for a TDIU was received on August 22, 1994; there is no evidence of any unadjudicated formal or informal increased rating claim (to include any claim for a TDIU) subsequent to the final April 1988 rating decision and prior to August 22, 1994. 4. From August 22, 1993 through May 19, 2009, the Veteran was service-connected for PTSD, rated 50 percent disabling; he was also in receipt of compensation for right orchiectomy, prosthesis placement with left varicocelectomy, rated 20 percent disabling (except for periods when temporary 100 percent ratings were in effect); his combined disability rating during this period was 60 percent (except for periods when temporary 100 percent ratings were in effect). 5. The evidence is at least evenly balanced as to whether, during the period from October 15, 2000 through May 19, 2009, the Veteran was precluded from securing and following all substantially gainful employment for which his education and occupational experience would have otherwise qualified him due to service-connected PTSD. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an effective date of October 15, 2000, but no earlier, for the award of a TDIU due to service-connected PTSD, are met. 38 U.S.C. §§ 1155, 5107(b), 5110, 7105; 38 C.F.R. §§ 3.102, 3.104, 3.155 (in effect prior to March 24, 2015), 3.156(a)-(b), 3.400, 3.340, 3.341, 4.16, 19.52(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1974 to March 1975. This matter initially came before the Board of Veterans’ Appeals (Board) from a November 2011 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in December 2013 in lieu of a formal hearing and a report of that conference is associated with the Veteran’s claims file. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2018 hearing and a transcript of the hearing is associated with his claims file. In July 2018 and June 2020, the Board remanded this matter for further development. Specifically, the Board instructed the AOJ to implement the Board’s award of an effective date of January 16, 1985 for the award of service connection for PTSD and to assign an initial disability rating; obtain the Veteran’s outstanding relevant Social Security Administration (SSA) records; and refer the case to VA’s Director of Compensation (Director) for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during any period from August 1994 through May 19, 2009. Pursuant to the Board’s remands, the AOJ implemented the Board’s award of an effective date of January 16, 1985 for the award of service connection for PTSD and assigned an initial 50 percent disability rating by way of a February 2019 rating decision. Also, all available relevant SSA records have been obtained and associated with the claims file, the issue of entitlement to a TDIU prior to May 20, 2009 was referred to the Director, and the Director issued a decision in December 2020. Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Earlier 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 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 later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The award of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). Specifically as to claims for increase, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o). The United States Court of Appeals for Veterans Claims (Court) and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1),(2). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the Veteran’s claim for a TDIU was filed prior to March 24, 2015, the amendments are not applicable in this instance. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). However, even when the percentage requirements under 38 C.F.R. § 4.16 (a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The Board points out that although it is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. The Board conducts a de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 236-39 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal”). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be 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, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU may be an element of an appeal for a higher initial rating or a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. at 453. Therefore, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is not a separate claim, but is rather part and parcel of the underlying claim for benefits. Rice, 22 Vet. App. at 454; see also Harper v. Shinseki, 30 Vet. App. 356 (2018). Entitlement to an effective date earlier than May 20, 2009 for the award of a TDIU due to service-connected disability Historically, the AOJ awarded compensation pursuant to 38 U.S.C. § 351 for atrophy, right testicle and assigned an initial 10 percent disability rating, from November 27, 1984, in an October 1987 rating decision. The Veteran was notified of the AOJ’s decision, he did not appeal any aspect of the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 1987 decision became final as to the initial rating assigned for the service-connected right testicle atrophy (and any TDIU issue that may have been part and parcel of an appeal for a higher initial rating for this disability). See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. In an April 1988 rating decision, the AOJ denied entitlement to a rating in excess of 10 percent for atrophy, right testicle. The Veteran was notified of the AOJ’s decision, he did not appeal any aspect of the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the April 1988 decision became final as to the rating assigned for the service-connected right testicle atrophy (and any TDIU issue that may have been part and parcel of the claim for an increased rating for this disability). See Id. The current effective date for the award of a TDIU is May 20, 2009, the date that the Veteran’s service-connected disabilities meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). The Veteran submitted a formal claim for a TDIU (VA Form 21-8940) in December 2010. However, in August 1994, he submitted a statement in which he indicated that he had “trouble holding a job” and that he had approximately 50 to 60 jobs since his discharge from service because he would “get scared of the environment and leave” (see August 1994 “Statement in Support of Claim” form (VA Form 21-4138)). This statement was received by VA on August 22, 1994. In light of the fact that the Veteran is service-connected for PTSD, effective from January 16, 1985, the Board finds that his August 1994 statement constitutes an informal claim for a TDIU due to service-connected disability. As explained above, the AOJ implemented the Board’s award of an effective date of January 16, 1985 for the award of service connection for PTSD and assigned an initial 50 percent disability rating by way of a February 2019 rating decision. The Veteran was notified of the AOJ’s decision, he did not appeal any aspect of the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the February 2019 decision became final as to the initial rating assigned for PTSD (and any TDIU issue that may have been part and parcel of an appeal for a higher initial rating for this disability). See Id. In light of the above, the Board will consider the evidence pertinent to the period beginning on August 22, 1993 (one year prior to receipt of the Veteran’s August 1994 informal TDIU claim) to determine when his entitlement to a TDIU was factually ascertainable. During the period from August 22, 1993 through May 19, 2009, the Veteran was service-connected for PTSD, rated 50 percent disabling. He was also in receipt of compensation for right orchiectomy, prosthesis placement with left varicocelectomy, rated 20 percent disabling (except for periods when temporary 100 percent ratings were in effect). His combined disability rating during this period was 60 percent (except for periods when temporary 100 percent ratings were in effect). The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him at any time during this period. The report of an April 1977 VA examination, a September 1980 VA hospital summary, a March 1982 “Income-Net Worth and Employment Statement” (VA Form 21-527), a June 1983 VA Form 21-527, a June 1983 VA hospital summary, the Veteran’s August 1994 VA Form 21-4138, an August 1994 VA treatment record, an August 1994 VA discharge summary, a September 1994 VA treatment record, a September 1994 VA discharge summary, VA treatment records dated from December 1999 to November 2007, an October 2008 VA psychology discharge note, the report of a January 2010 VA psychiatric examination, the Veteran’s December 2010 VA Form 21-8940, and his SSA disability records indicate that he completed 3 to 4 years of high school and received additional training in air conditioning maintenance. He had employment experience as a gas station manager, a diesel mechanic, a waiter, a construction worker, a bowling alley mechanic, an air conditioning technician, and a refrigeration repairman. He experienced difficulty with closed spaces and had a history of quitting jobs due to being placed in confined spaces. He reported during the October 2008 VA evaluation that he had been experiencing panic episodes and avoidance of anxiety provoking situations for the previous 30 years, and that he was no longer able to sustain employment because he tended to become overwhelmed with confined spaces. The information reported by the Veteran on his December 2010 VA Form 21-8940 and the information in his SSA disability records reflect that he was gainfully employed with various employers until 2000, that his alleged disability onset date was October 15, 2000, and that although he had additional attempts at employment after this date, such attempts were unsuccessful, sporadic, and non-gainful. As for symptoms associated with the Veteran’s service-connected PTSD, he experienced difficulty sleeping, nightmares, flashbacks, hypervigilance, a hyperstartle response, fear of enclosed areas with situational claustrophobic symptoms, avoidance of crowded and confined spaces due to panic symptoms in such environments, depression, anxiety, occasional suicidal ideation (with a history of suicide attempts), circumstantial and tangential thought processes, anhedonia, a constricted affect, moderate to severe panic attacks 3 to 4 times per week for 30 to 60 minutes at a time, mildly impaired memory, and social withdrawal. The examiner who conducted the January 2010 VA examination explained that the Veteran’s efforts to avoid social discomfort and anxiety had led him to become socially withdrawn. He had few leisure interests and did not socialize much outside of his family. The severity of his anxiety in confined spaces made it near impossible for him to continue to work and this impaired his ability to obtain/sustain gainful employment. In December 2020, the Director reviewed the Veteran’s claims file and concluded that entitlement to an extraschedular TDIU prior to May 20, 2009 was not warranted. In pertinent part, the Veteran reported that he was unable to work because he felt overwhelmed with confined spaces, but he had periods of part-time employment until 2004. His treatment records indicated that his mental health symptoms were mild to moderate and that he experienced anxiety, depression, and panic attacks. He also received treatment for alcohol dependence and grief due to loss of family members. Although he had a history of mental health symptoms and he reported that such symptoms caused some impairment of occupational functioning, his records did not show that he would have been totally disabled due to the mental health symptoms. Overall, the evidence failed to support the contention that any of the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, prevented employment. The above evidence reflects that the Veteran has no more than a high school education and that he received some additional training in air conditioning maintenance. The majority of his employment experience was as a mechanic and an air conditioning technician and the last clear evidence of gainful employment was on October 14, 2000 (the day before the disability onset date specified by the Veteran in his SSA disability records). Although he has had some employment on various occasions since that time, his SSA disability records and the income information provided by the Veteran with his December 2010 VA Form 21-8940 suggest that any such employment was unsuccessful, sporadic, and not gainful. In the years since October 2000, he has experienced symptoms associated with his service-connected PTSD that result in functional impairments that significantly interfere with his ability to secure and follow any substantially gainful employment consistent with his education and occupational experience. For instance, his medical records and lay statements reflect symptoms and impairments associated with his service-connected PTSD (including, but not limited to, anxiety, depression, social withdrawal, impaired memory, impaired thought processes, frequent and severe panic attacks multiple times per week, suicidal ideation, and an inability to work in enclosed spaces due to panic symptoms) that would prevent him from performing any type of substantially gainful employment consistent with his limited education and occupational experience in air conditioning maintenance. Overall, the Bard finds that the above discussion of the severity of the symptoms of the Veteran’s service-connected PTSD and his educational and occupational experience, reflects that the evidence is at least evenly balanced as to whether he has been unable to secure and follow substantially gainful employment due solely to his service-connected PTSD during the entire period since October 15, 2000. This is the earliest that it is factually ascertainable that the Veteran was not gainfully employed and was unable to secure and follow any substantially gainful employment due to his service-connected PTSD. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an effective date of October 15, 2000, but no earlier, is warranted for the award of a TDIU. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.