Citation Nr: 21022620 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-15 933 DATE: April 16, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) for a portion of the appeal period as described below, is granted, subject to the controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities prevented him from securing and following substantially gainful employment for a portion of the appeal period as described below. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU have been met for a portion of the appeal period as described below. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1997 to April 1998. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Following a claim for service connection for Graves’ disease and a psychiatric disability in October 2010, the Veteran submitted an application for entitlement to TDIU, received May 2011, in which he claimed he was too disabled to work. In November 2012, the RO granted service connection for Graves’ disease and hypothyroidism, each assigned a separate rating, effective March 14, 2011. In December 2015, the RO took corrective action to assign a single evaluation for Graves’ disease based on hypothyroidism. In June 2013, the RO granted service connection for a psychiatric disability of generalized anxiety disorder, also effective March 14, 2011. Following April 2015 and December 2015 Statements of the Case, the Board merged the issues on separate appeal streams into one docket. In its August 2018 decision, the Board found TDIU was also on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as it was part and parcel of the claims for higher initial ratings for Graves’ disease and generalized anxiety disorder. Thus, the date of claim for purposes of entitlement to TDIU is March 14, 2011. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). The Board remanded the issue of TDIU for further development, including requesting a formal TDIU claim form (VA Form 21-8940) from the Veteran and adjudicating TDIU in the first instance. Any lack of substantial compliance with the Board remand directives is a moot point as the benefit requested, TDIU for a portion of the appeal period, is being granted in full herein; there is thus no prejudice to the Veteran. Following the Board remand, the RO denied TDIU in the first instance in an April 2020 rating decision, issued an April 2020 Statement of the Case, and recertified the case to the Board. TDIU for a portion of the appeal period In a May 2019 statement, the Veteran claimed he was unable to work from April 2011 through December 2012 due to his service-connected disabilities. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following “substantially gainful employment” consistent with educational 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 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (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. 38 C.F.R. § 4.16(a). In the present case, the Veteran is service connected for generalized anxiety disorder with alcohol abuse rated at 70 percent from March 14, 2011, and hypothyroidism associated with Graves’ disease status-post radioactive iodine treatment, rated at 10 percent from March 14, 2011 to February 28, 2016, 60 percent from March 14, 2011 to March 1, 2016, and 30 percent from March 1, 2016 to the present. Thus, the Veteran has met the percentage requirements for a TDIU, including during the period of April 2011 to December 2012. 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran’s service-connected Graves’ disease and hypothyroidism precluded the Veteran from securing and following a substantially gainful occupation during the timeframe for which he has claimed entitlement to TDIU. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (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 following: 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. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Regarding the Veteran’s employability, in a VA 21-8940 formal TDIU application received May 2012, the Veteran wrote his generalized anxiety disorder and thyroid prevented him from securing or following any substantially gainful employment and he last worked for the Social Security Administration (SSA) on April 11, 2011. In a later VA 21-8940 TDIU application received May 2019, the Veteran wrote that all of his service-connected disabilities prevented employment, his disability affected full-time employment October 30, 2010, the last date he worked full-time was April 11, 2011, and he has an educational history including four-years of college. For employment history working at least 35 hours per week and making at least $2000 per month, the Veteran began working March 2012 through the present. In a statement attached to the May 2019 TDIU application, written in support of a claim for temporary unemployment compensation for a period covering April 2011 to December 2012, the Veteran wrote he had experienced extremely heightened symptoms of anxiety attacks in the fall of 2010 when he was employed by SSA. He began seeking treatment from a psychiatrist at that time and was prescribed medications. However, he was never able to get to a point where he could function at the SSA job and was terminated sometime between February and April 2011. At a June 2011 VA examination, the Veteran expressed that he would like to continue working but was very worried about returning to another job only to be let go as related to his psychiatric condition. In the same examination report, it was noted that the Veteran stated his last day at work was the previous December when he took sick leave and was referred by his therapist to a psychiatrist for a medication trial. At that point he was too subdued and unable to return to work when taking medication, but was too anxious to work when not taking medication. Large amounts of stress and nervousness were experienced in a work setting, and the June 2011 VA examiner noted that his Graves’ disease caused increased tardiness. The Veteran wrote to VA in a statement received May 2011 that he was diagnosed with generalized anxiety disorder in October 2010 and took medications for panic attacks. He wrote that his anxiety disorder was a factor in his recent termination from the SSA, as was his thyroid disorder. A January 2011 private medical record shows the Veteran was continuously treated for his psychiatric symptoms, including anxious mood. In February 2011, it was noted he felt depressed, that he was unable to work, he lied to his family about working, and he felt guilty, experiencing crying spells. During a July 2015 hearing at the RO, the Veteran testified that he had been unemployed for a specific amount of time at least in part due to his anxiety. He was offered another job but had to decline the opportunity due to his fatigue and other symptoms. The claims file also contains a May 2011 misconduct determination from the Veteran’s SSA employer regarding whether he would be entitled to benefits, and a March 2011 resignation letter signed by the Veteran. The final SSA determination was that there was no misconduct that would bar benefits in the Veteran’s termination for being absent without official leave and not following leave procedures. The Veteran’s lay statements regarding his period of unemployment beginning around April 2011, in conjunction with the medical records showing treatment for his service-connected anxiety which interfered with his job, support a finding that the Veteran was prevented from performing any type of employment at that time due to service-connected disability. For the foregoing reasons, the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment during the appeal period. Therefore, entitlement to a TDIU is warranted on the temporary basis sought. 38 C.F.R. § 4.16(a). The Board will not assign an effective date for the grant of TDIU for the precise dates of time during the appeal period TDIU is warranted and will allow the Agency of Original Jurisdiction (AOJ) to do so in the first instance. 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”). However, it appears from the above evidence that they Veteran stopped working in December 2010 and officially separated from his job at SSA in April 2011. According to the Veteran, he began working again in December 2012, and according to his employer, he was working on a more permanent full-time basis starting March 2013. Given that the AOJ will have the ability to better determine the precise dates of employment and non-employment, the Board will allow it to assign the effective dates of the TDIU in the first instance. As noted, given that TDIU is part and parcel of the claims for higher initial ratings for Graves’ disease and generalized anxiety disorder, the relevant effective date is March 14, 2011. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.