Citation Nr: 21023233 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-49 151 DATE: April 20, 2021 ORDER Entitlement to an effective date of December 29, 2014, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed his claim received December 29, 2014. From that date he was unable to obtain or maintain substantially gainful employment due to his service-connected conditions. 2. It was not factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected conditions prior to December 29, 2014. CONCLUSION OF LAW The criteria for an effective date of December 29, 2014, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1967 to December 1968. The Veteran appealed a November 2015 rating decision by the Agency of Original Jurisdiction (AOJ). In December 2018, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU was granted in an October 2020 rating decision effective December 6, 2019. The December 2018 Board decision noted TDIU arose during the course of the Veteran’s increased rating claim for his specified anxiety disorder. The Veteran’s claim was received December 29, 2014. As such, entitlement to TDIU was granted for only part of the period on appeal. Therefore, the Board will address entitlement to TDIU prior to December 6, 2019. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year “look back period” preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). The Veteran stated he last worked in 1984 and he worked as a letter carrier. See January 2020 informal hearing presentation (IHP); April 2015 VA examination report. He has a few years of college education, but did not get a degree. See January 2014 VA treatment record; April 2015 VA examination report. The Veteran has a combined rating of at least 60 percent as of March 19, 2012. During the entire period on appeal, the Veteran, in relevant part, had a 50 percent rating for bilateral hearing loss (BHL) from March 19, 2012, a 30 percent rating for BHL from March 1, 2015, a 30 percent rating for other specified anxiety disorder from December 29, 2014, and a 10 percent rating for tinnitus. Here, the Veteran’s service-connected tinnitus and other specified anxiety disorder are related to his BHL and combine to a 60 percent rating throughout the period on appeal. This will be considered a single disability for purposes of TDIU. As such, the Veteran has met the schedular criteria for TDIU for the entire period on appeal. The March 2014 VA examination report regarding hearing loss noted that hearing loss and tinnitus do not impose work restrictions in fields of labor that are sedentary, light, medium, or heavy manual labor, that the Veteran’s most recent occupation as a letter carrier was not impeded by his hearing, and that symptoms would not impact his reliability, productivity, and ability to concentrate. The April 2015 VA examination report regarding mental disorders noted the Veteran’s hearing loss causes stress in everyday life, loss of hearing triggers anxiety, he does wood carving, that he cannot hear people and it sounds like he is yelling at others, and difficulty establishing and maintaining effective work and social relationships. A June 2015 DBQ by psychologist G.P. noted anxiety makes it difficulty for the Veteran to maintain friendships or working relationships, hearing impairment exacerbates communication, depressed mood, difficulty adapting to stressful circumstances, and impaired impulse control. The Veteran stated in his February 2015 notice of disagreement (NOD) that his anxiety is debilitating and he is quick to anger. The March 2016 VA examination report regarding mental disorders noted the Veteran left his post office position since he could not take the pressure and that he held roughly 70 jobs since separating from service. Panic attacks more than once a week, illogical speech, impaired judgment, and substantial adverse effect on his ability to interact effectively with co-workers and supervisors in employment settings were also noted. A December 2019 VA opinion found the Veteran’s disabilities make him unable to secure of follow a substantially gainful occupation. The December 2019 VA opinion noted irritability, trust issues, fatigue, and impaired concentration and memory. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran was granted TDIU based on December 2019 VA examinations and opinions noting an increase in the Veteran’s psychiatric disorder. However, it is likely the Veteran had such symptoms and inability to function appropriately in a workplace setting prior to December 2019. Medical evidence suggests psychiatric issues that hindered the Veteran’s ability to perform well under stress and work with others. This included concentration and memory issues. The Veteran held various jobs following active service. Evidence suggests the Veteran left his last position at the post office due to not being able to handle the pressure. Therefore, the Veteran’s anxiety, panic attacks, and other mental health deficits would have contributed to the Veteran being unable to sustain an employment position. Additionally, the Veteran would have had difficulty in obtaining employment in a customer service or office setting that required him to communicate with others due to his hearing loss and tinnitus. The Veteran does not have any advanced training or degree that would allow him to work in a field or setting that did not deal with people and not aggravate his anxiety. As such, the Board finds the Veteran credible as to his functional limitations attributable to the combination of his service-connected conditions. During the one-year look-back period, the Veteran was only service-connected for BHL and tinnitus. However, the Board does not find the Veteran’s service-connected audiological conditions alone rendered him unable to obtain substantially gainful employment. The above medical evidence does not suggest the Veteran left his prior employment due to his hearing loss or tinnitus conditions alone. Rather, the Veteran left due to not being able to handle pressure. Therefore, the Veteran’s reason for leaving his previous employment was primarily psychological in nature. Although the Veteran would not be able to work in positions that required prolonged and detailed verbal communications with others, the Veteran would likely have been able to obtain gainful employment in tasks that did not require such communication. Given the Veteran’s experience of working at the post office, the Veteran could have sought gainful employment in such positions as delivery or a courier, stocking, or warehousing. Therefore, given the totality of the evidence, the Board finds the criteria for an effective date of December 29, 2014, but no earlier, for entitlement to TDIU have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.