Citation Nr: 21022302 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-22 280 DATE: April 15, 2021 ORDER An effective date earlier than March 31, 2015, for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June to December 1977, May 1978 to January 1984, and October 1986 to March 1993. He also had service with the National Guard. 2. TDIU was granted effective March 31, 2015, the date the Veteran met the schedular criteria for TDIU; prior to March 31, 2015, he was not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date earlier than March 31, 2015, for the grant of TDIU have not been met. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.6, 4.7, 4.16. (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU was granted in May 2015 effective March 31, 2015, the date the Veteran met the schedular criteria for TDIU. He appealed the effective date assigned for TDIU. Historically, the RO granted service connection for chronic low back muscular strain superimposed on degenerative instability in a February 1994 with a 0 percent rating. In September 2003, the RO increased the rating to 20 percent effective September 25, 2002. In November 2003, service connection was granted for posttraumatic stress disorder (PTSD) with a 30 percent rating effective March 10, 2003. In July 2010, PTSD was increased to 50 percent effective March 10, 2010. In May 2015, PTSD was increased to 70 percent effective March 31, 2015. On March 31, 2015, the Veteran first submitted a VA Form 21-8940, application for TDIU. He indicated that he was unemployable due to his back injury and PTSD. He stated that he was last employed full time on April 16, 2011, and became unemployable on that date. He listed several prior jobs (truck driver and mechanic) but did not list any dates of such prior employment. A TDIU is warranted 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). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is service-connected for PTSD at 70 percent from March 31, 2015, and lumbar strain at 20 percent from September 25, 2002. The combined rating for compensation was 80 percent as of March 31, 2015. Hence, he met the percentage criteria for a TDIU set forth in 38 C.F.R. § 4.16(a) from March 31, 2015. Even so, to grant TDIU it must be found that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”) prior to March 31, 2015. Moore v. Derwinski, 1 Vet. App. 356 (1991). The evidence reveals that the Veteran completed four years of high school, two years of college, and had additional training in correctional guard maintenance in the U.S. Marine Corps. Prior to becoming unemployed, he reported working as a truck driver and mechanic. As previously noted, in the VA Form 21-8940, he reported that he last worked full time in April 2011, and that he became unemployable in April 2011. VA treatment records dated in April 2011 reflected that the Veteran needed time off work due to back pain and in his October 2011 notice of disagreement (with respect to a September 2011 rating decision denying a rating in excess of 20 percent for lumbar strain) indicated that he had to take time off of work due to his back pain. A May 2012 A back examination report stated that the Veteran was working as a truck driver and a May 2012 VA treatment record indicated that he had recently lost his job working on diesel equipment. In October 2013, he submitted a November 2012 letter from the Transportation Security Administration (TSA) which noted that a medical examination performed in conjunction with his application to become a transportation security officer (TSO) with TSA resulted in medical disqualification due to chronic intermittent back pain. Since 1994, the Veteran had submitted several claims for increased ratings for his service-connected back disability. He did not indicate that he was unemployable due to his back disability at any time prior to filing the March 2015 TDIU claim. Similarly, he submitted increased rating claims for his PTSD since 2003 but had not indicated that he was unemployable due to his PTSD at any time prior to the March 2015 TDIU claim. An April 2015 VA PTSD examination report indicated that the Veteran’s PTSD essentially precluded employment (severe impairments that would likely have a direct impact on occupational functioning in the following settings: sedentary employment, employment in a loosely-supervised situation, and employment requiring little interaction with the public). It also indicated that the Veteran would have functional limitations regarding his back disability in terms of not being able to walk, stand, or sit more than 30 minutes, and not being able to do activities that involve bending forward without bracing himself using hands, and not being able to squat or kneel. The evidence as set forth above reflects conflicting dates of the Veteran’s last full-time employment; however, the evidence shows that he last worked full time sometime in 2013 or 2014. Although his VA Form 21-8940 indicates that he last worked in April 2011, VA treatment records indicate that he was employed at least some part of 2012 and an August 2013 VA treatment record noted that he owned a repair shop. However, the evidence is not at least evenly balanced as to whether the Veteran’s service-connected back and PTSD disabilities precluded him from obtaining and retaining substantially gainful employment as of any date prior to March 31, 2015. In this regard, although he was noted to have a lost a job working on diesel equipment in May 2012, it was not indicated that he lost his job due to a service-connected disability. Additionally, while the Veteran was medically disqualified from obtaining a TSO position with the TSA in November 2012 due to his back pain, the November 2012 letter specifically stated that that although he did not meet the requirements of a TSA position, it did not mean that he would not meet the requirements of other TSA jobs or those in the federal government. Moreover, an April 2013 private treatment record specifically indicated that he was currently in the National Guard and ran 2.5 to 3 miles a day. This evidence weighs heavily against a finding that he was unemployable due to his back disability, as it shows he was able to run miles and there for not incapable of performing all work. Moreover, an August 2013 VA treatment record notes the Veteran’s report that his back pain was rated at 4-5 out of 10. He requested narcotics for back pain; however, because it was noted that he drank alcohol daily, narcotics could not be prescribed. He was encouraged to do exercises for his back pain. It was also noted that he owned a repair shop and was looking for a house to purchase or rent. An April 2015 VA PTSD examination report noted that the Veteran had not been employed since 2011 when he was laid off. It does not indicate that he was laid off due to a service-connected disability. It was also noted that he was in National Guard until 2012 when he earned enough credits with Army and Marine Corps time to qualify for 20-year retirement pension. While there were occupational limitations due to the Veteran’s PTSD which were noted to be severe in April 2015, prior to that time, there is no record of any such severe impairment which would render him unemployable as a result of the PTSD. In this regard, there is no evidence of ongoing treatment for PTSD. The 2010 VA PTSD examination report noted he was not in receipt of treatment for PTSD and subsequent VA treatment records reflect no mental health treatment. Notably, an August 2013 VA treatment record stated that the Veteran continued to not be interested in mental health treatment and that he was self-employed. Under the circumstances as set forth above, the Veteran’s service-connected disabilities did not preclude him from securing or following gainful employment prior to March 31, 2015. Importantly, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, the medical evidence does not support TDIU prior to March 31, 2015. The Board has considered the Veteran’s lay statements regarding his capacity to work prior to March 31, 2015. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.