Citation Nr: 21025680 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-47 170 DATE: April 28, 2021 ISSUE Entitlement to an earlier effective date prior to May 4, 2019 for a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. ORDER Entitlement to a total disability rating based on individual unemployability is granted from June 12, 2010. FINDING OF FACT Resolving doubt in favor of the appellant, during the period on appeal, it is as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from June 10, 2010 to May 4, 2019. CONCLUSION OF LAW For the entire period on appeal the criteria for a finding of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16 (a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1965 to December 1967. This matter comes to the Board on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board issued a decision denying entitlement to an effective date earlier than June 12, 2010 for the increased 70 percent rating for service-connected PTSD. The Board decision also granted entitlement to a TDIU due to service-connected PTSD from May 4, 2019. The Veteran filed an appeal to the Court of Appeals of Veterans Claims (CAVC) contesting the Board's decision. In December 2020, CAVC vacated and remanded part of the Board's decision for compliance with the instruction in a Joint Motion for Partial Remand (JMPR). The parties of the JMPR agreed that the Veteran did not challenge the portion of the Board’s decision that denied entitlement to an effective date earlier than June 12, 2010 for the increased 70 percent rating for service-connected PTSD. Therefore, that issue was dismissed by the Court. The parties also agreed that the portion of the Board decision which granted entitlement to TDIU from May 4, 2019 forward was favorable to the Veteran and should not be disturbed on appeal. As such, the issue has been recharacterized as an entitlement to an earlier effective date prior to May 4, 2019 for a grant of a TDIU. The claim has been reworded as noted above. See 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Furthermore, the parties agreed that the Board erred in its decision when it failed to adequately discuss evidence of record materially favorable to the Veteran’s claim. After vacating a portion of the Board’s decision, the case was remanded pursuant to 38 U.S.C. § 7252 (a) for readjudication and compliance with the instructions in the JMPR. Since the matter was returned to the Board from CAVC, the Board notes that the Veteran and his representative have submitted additional argument regarding his claim for an earlier effective date for TDIU. Upon review of the claims file the Board finds that the evidence of record is sufficient to grant in full the claim for TDIU. As such, the Board will proceed to the merits of the issue on appeal. Total disability rating based on individual unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual 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 (includes 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an earlier effective date prior to May 4, 2019 for a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. The Veteran contends that during the period on appeal he was unable to obtain and maintain gainful employment due to the severity of his service-connected PTSD. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more service-connected disabilities, if at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From June 10, 2010 to May 4, 2019 the Veteran was service- connected for PTSD with a 70 percent rating. Therefore, the Veteran has met the schedular percentage requirements for entitlement to TDIU for the entire period under consideration. See 38 C.F.R. §§ 4.16(a). Next, the Board must consider whether the evidence shows that the Veteran’s service-connected PTSD prevented employability at any point since July 2010. In evaluating the Veteran's claim of entitlement to a TDIU, the Board has considered the Veteran's education, employment history, medical examinations of record, and Veteran and witness contentions. As will be outlined below, the Board finds it is reasonably shown that the Veteran's PTSD rendered him unemployable during the appeal period. As it relates to the Veteran’s education the evidence shows the Veteran dropped out of school in the 7th grade to join the Army but eventually obtained an Associate Degree in Computer Technology in 1988. As pertinent to the Veteran’s work history, he reported in a January 2011 VA PTSD examination that after service he worked as a sound engineer in the music industry for approximately 15 years, after which he worked at FedEx from May 1989 until his retirement in June 2010. The Veteran has reported that he was initially employed as a package handler at FedEx but, at the time of his retirement, he was a team leader and maintenance supervisor. The Veteran was afforded a VA PTSD examination in January 2011. At that time the Veteran reported that his private doctor recommended he retire in 2010 because of stress from his job as team leader. The Veteran also noted that his job at FedEx was physically and emotionally demanding and, in this regard, he reported that he injured his back on the job in 1989 and never fully recovered from that injury. He also reported having a chronic sleep impairment, in which he was unable to sleep for more than 3 hours at a time, and which he stated resulted in him arriving later to work and contributed to his retirement. During the mental status examination, he endorsed symptoms including chronic irritability and depression, being apathetic, and having flashbacks. The Veteran also reported that his only social contacts were when he went to stores for errands. He did state that he continued to talk to his daughter frequently and expressed enjoyment in going to the casino twice a month, exercising, and working on a computer to promote a CD he made. The examiner opined that the Veteran’s PTSD appeared to have impaired his employment as his insomnia led to him going to work later. The examiner also opined that the Veteran was not totally and socially impaired from his PTSD and that his signs and symptoms were mild and mildly decreased his work efficiency and social relationships. In a March 2012 VA PTSD examination, the Veteran reported being socially isolated as well as having panic attacks. He endorsed symptoms which included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and the inability to establish and maintain effective relationships. The examiner noted that the Veteran had social impairment with reduced reliability and productivity. The Veteran attended another VA PTSD examination in December 2013. At that time, he also endorsed a loss of interest in social activities, as he only left the house for appointments and to go shopping. He stated that he continued to try to exercise but that he was not always motivated. The Veteran endorsed symptoms including a depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of mood and motivation , difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The December 2013 examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas. The December 2013 examiner provided an addendum opinion in January 2014 in which the examiner explained that he disagreed with the findings of the January 2011 examiner to the extent that the January 2011 examiner opined that the Veteran’s PTSD symptomology was mild and mildly decreased his work efficiency and social relationships. The December 2013 examiner opined that the January 2011 opinion was contrary to the Veteran’s reported signs and symptoms at that time, and he further stated that it was his belief that the Veteran’s PTSD significantly impacted his occupational and social functioning. Within this opinion the examiner stated that the Veteran would miss three or more days of work a month due to mental problems, had to leave early from work three or more days a month, had trouble with concentration and frequently decompensated when subjected to normal pressures and constructive criticisms of a job. In a May 2019 VA PTSD Disability and Benefits Questionnaire (DBQ) the Veteran reported having panic attacks more than once a week and was noted to have memory loss, speech problems, impaired judgement, and tangential and pronounced concentration difficulties. The Veteran also manifested difficulty with activities of daily living, as he reported that his house was in disarray because he did not feel like cleaning. He was also tearful and had crying spells during the examination. During that examination, the Veteran reported that his concentration problems began at FedEx and caused anxiety, which he stated contributed to his leaving the job. He also reported that he became angry with employees. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas. As far as the impact of the Veteran’s PTSD on his employability the examiner opined that the Veteran’s frequent re-experiencing of symptoms would make it difficult for him to concentrate on work tasks. The examiner also stated that the Veteran’s irritability and anger would make it difficult for him to get along with co-workers and supervisors, just as it interfered with his relationships at FedEx. The examiner went on to explain that in her opinion the symptoms that the Veteran suffers from have been present since he filed his claim in July 2010. She explained that the symptoms cause significant impairment for the Veteran and it is more likely than not that he has been unable to sustain gainful employment since he stopped working in June 2010 to the present. In support of her opinion the examiner not only cited to the Veteran’s claim file and prior examinations, but also supporting medical literature on the impacts of PTSD on sleep quality and inhibited work performance. In June 2019 the Veteran submitted two lay statements from individuals who worked with him at FedEx. Both individuals confirmed that, when he was working, the Veteran lashed out often, had difficulty interacting with others and worked better alone because he was not social. They also reported that the Veteran could not handle stress, had difficulty focusing, and became confused sometimes because he was tired. The lay and medical evidence reflects that taking into consideration the Veteran's level of education, work experience, and resulting social impairment from his service-connected PTSD, the Board finds that the Veteran is unable to work during the entire period on appeal. The Veteran’s occupational history consisted of two types of jobs: being a sound engineer in the music industry and working as a package handler and team supervisor at FedEx. The Board assigns considerable probative value to the May 2019 VA medical opinion. In that regard the examiner noted that symptoms of the Veteran’s PTSD, which persisted during the entire period on appeal, would make it difficult for him to concentrate on work tasks and his irritability and anger would make it difficult for him to get along with co-workers and supervisors. The Board notes that, even with concessions for the Veteran to work alone and having a flexible schedule, it is unlikely he would be able to secure and maintain any form of substantial gainful employment given the severity of his symptoms and the level of impairment caused by symptoms. Thus, after careful review of the record, including the medical evidence and the Veteran's and witnesses statements regarding the impact of his service-connected PTSD on his ability to gain and maintain employment, the Board finds there is sufficient evidence to find that the Veteran's PTSD would substantially preclude gainful employment during the period on appeal. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Affording the appellant all benefit-of-the-doubt, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran was unable to perform the physical and mental acts required for substantially gainful employment due to his service-connected PTSD. Accordingly, TDIU is warranted for the entire period on appeal. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED