Citation Nr: 21028424 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 05-05 004 DATE: May 11, 2021 ORDER Entitlement to an effective date earlier than January 11, 1995 for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is assigned a 60 percent disability rating for his service-connected status postoperative failed surgical back with probable arachnoiditis, effective January 24, 1994. 2. The Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected low back disability and was last gainfully employed on January 11, 1995. CONCLUSION OF LAW The criteria for an effective date earlier than January 11, 1995 for the grant of entitlement to a TIDU have not been met. 38 U.S.C. §§ 1555, 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge (VLJ) in April 2007. The Veteran's representative presented evidence during a December 2015 Board hearing. Transcripts of the hearings are associated with the claims file. During the April 2007 hearing, the VLJ clarified the issue on appeal, clarified the concept of earlier effective date claims, identified potential evidentiary defects which included when the Veteran was unable to secure or maintain substantially gainful employment, clarified the type of evidence that would support the Veteran's claim, and enquired as to the existence of potential outstanding records. These actions complied with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. This matter has an extensive procedural history that the Board will summarize. Most pertinently, in a September 2009 decision, the United States Court of Appeals for Veterans Claims (Court) determined that a 1995 rating decision denying entitlement to a TDIU was not final. The Board remanded the claim for a TDIU in February 2011 for action consistent with the Court's order, and in September 2012 the RO issued a rating decision granting entitlement to a TDIU effective July 1, 2001. The Veteran appealed this decision, arguing that TDIU should have an earlier effective date. In an August 2017 decision, the Board awarded the Veteran an effective date of January 11, 1995 for TDIU. The Veteran appealed the Board's decision, and in March 2018 the Court issued an order implemented a Joint Motion for Remand (JMR) and vacated and remanded the portion of the Board's August 2017 decision that denied entitlement to an effective date earlier than January 11, 1995 for TDIU. The JMR noted that the Board did not address potentially favorable evidence indicating that the Veteran was not able to secure or follow a substantially gainful occupation prior to January 11, 1995. In particular, the Veteran testified that he last worked in 1992 and could not work due to his back condition, and a response from the Office of Personnel Management (OPM) stated that the Veteran last worked on March 7, 1992 and that he was receiving disability retirement. The JMR also noted that it was unclear at what point the Veteran's work responsibilities were reassigned to less than full time. The Veteran's claim was returned to the Board and, in an August 2018 decision, the Board continued the denial of the Veteran's claim of entitlement to TDIU prior to January 11, 1995. In a September 2019 order of the Court implemented another JMR and vacated and remanded the Board's August 2018 decision. The JMR noted that the Board did not address potentially favorable evidence indicating that the Veteran was not able to secure or follow a substantially gainful occupation prior to January 11, 1995. Specifically, the parties agreed that the Board did not adequately address the Veteran's testimony that he last worked in 1992 as well as the response from OPM stating the Veteran last worked in March 1992 and that he was receiving disability retirement. Further, the parties agreed that the Board did not address a printout from the Social Security Administration (SSA) that noted the Veteran last had significant taxable income in 1992 and that in subsequent years, he had little to no income. The Veteran's claim returned to the Board and, in a January 2020 decision, the Board continued the denial of the Veteran's claim of entitlement to TDIU prior to January 11, 1995. Thereafter, a November 2020 order of the Court implemented a JMR and vacated and remanded the Board's January 2020 decision. The JMR noted that the Board did not address potentially favorable evidence indicating that the Veteran was not able to secure or follow a substantially gainful occupation prior to January 11, 1995. Specifically, the parties agreed that the Board did not adequately address the March 1996 TDIU application, wherein the Veteran reported that his employment with the United States Postal Service had ended on December 31, 1991. The issue of entitlement to an effective date earlier than January 11, 1995 is before the Board. 1. Effective date prior to January 11, 1995 for the award of TDIU. The Veteran seeks an effective date for the award of TDIU prior to January 11, 1995. The grant 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). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided 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. See 38 C.F.R. § 4.16 (a). Here, January 24, 1994, is the first date in which the Veteran satisfied the threshold percentage requirements for entitlement to a TDIU as outlined in 38 C.F.R. § 4.16 (a). A claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A grant 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). As such, consideration of evidence of unemployability as far back as the assignment of the 60 percent disability rating for the Veteran's back disability is warranted. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. We note that the Veteran has a high school education and an associate's degree in accounting. The Veteran contends that the effective date of the award of TDIU should be January 24, 1994, the date he met the schedular requirements for a TDIU. He asserts that he was not gainfully employed prior to January 11, 1995, and that his earnings were below the poverty threshold. The Board previously assigned an effective date of January 11, 1995 for the award of TDIU benefits. This decision was predicated on a document dated January 11, 1995 wherein the Veteran was informed by the United States Postal Service (USPS) that, in accordance with a memorandum of understanding between the National Association Letter Carriers Union and USPS, he was being unassigned as a letter carrier due to being permanently unable to work all of the duties of his normal assignment. The Veteran has filed multiple TDIU applications containing varying information. VA received the Veteran's first application for a TDIU on January 24, 1995, wherein he indicated that he was then presently employed by USPS and that USPS was attempting to fire him due to his service-connected back disability. The Veteran referenced the January 11, 1995 letter in the "remarks" section of the application. The Veteran submitted another TDIU application in March 1996 wherein he reported that his employment with USPS had ended on December 31, 1991. A TDIU application received in April 2004 shows the Veteran reported he last worked in January 1992. There are multiple other statements and documents relevant to the issue of when the Veteran became too disabled to secure or follow a substantially gainful occupation. A February 1995 response from the United States Postal Service (USPS) regarding the Veteran's employment history indicates that the Veteran was on sick leave but does not indicate his work status. The response references the Veteran's pay stubs to show the number of hours worked, but the attached pay stubs do not indicate what type of compensation the Veteran was receiving, such as full-time compensation, disability, or retirement benefits. The Veteran testified at the April 2007 Board hearing that he last worked in 1992 and that he could not work due to his service-connected back disability. An August 2012 VA Form 21-4192 completed by the Office of Personnel Management (OPM) Retirement Operations Center states the Veteran last worked as a letter carrier in March 1992, that the date his employment ended was in May 2001, and that he was receiving disability retirement benefits. In April 2013, the Veteran submitted a document reporting that he had not paid Social Security taxes since 1988, and he had not paid Medicare taxes since 1996. In his April 2014 Form 9, the Veteran reiterated that the January 1995 USPS letter informing him of his change in work status is evidence of when he left his position and reported that he did not return to work in any form following that date. The Veteran's representative presented evidence at the December 2015 Board hearing from a licensed psychologist. The psychologist testified that she did not believe the Veteran could have obtained substantially gainful employment as of January 1994 based on two failed back surgeries and extensive treatment. She went on to opine that the Veteran did not have any transferrable skills as a result of his past work. The Veteran has also submitted a medical review and opinion from the psychologist reiterating her testimony at the Board hearing. Based on review of the evidence of record, the Board finds that an effective date earlier than January 11, 1995 for the award of TDIU is not warranted. The Board acknowledges the arguments raised by the Veteran, to include those in the JMRs. However, the January 1995 application for TDIU shows the Veteran reported that, in the previous 12 months, his total earned income was $22,200 and his monthly income was $1,800. We note that the Veteran denied receiving any disability benefits; the income the Veteran reported was earned from being employed by USPS. According to the Veteran's statements contained on the January 1995 application for TDIU, he received an earned income exceeding the 1994 and 1995 United States Census Bureau poverty threshold. Pertinently, he reported that he worked at the USPS from 1971 to the "present." Despite the Veteran's testimony that he has been unemployed since 1992, the January 1995 TDIU application suggests full-time employment until 1995 and that such employment was substantially gainful. We note that, although the claim is date stamped as being received on January 24, 1994, the date on the signature block is January 20, 1995, and supporting evidence submitted with the application dates to March 1994 and January 1995. The November 2020 JMR specifically instructs the Board to consider by the March 1996 TDIU application. The March 1996 application is a modified version of the application the Veteran filed in January 1995. Regarding when his employment ended, the Veteran crossed out "present" and reported that his employment with USPS had ended on December 31, 1991. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). The Veteran can competently testify about when he became unemployed or otherwise became incapable of substantially gainful employment. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran's statements regarding when he became unemployed have been remarkably inconsistent throughout the pendency of his claim for a TDIU. His testimony at the 2007 Board hearing that he had been unemployed since 1992 was at odds with his earlier reports in the January 1995 application for TDIU, wherein he reported that he was presently employed by USPS and had $22,200 of income in the preceding 12 months. He reported that he had last worked on December 31, 1991 on the March 1996 application for TDIU, which is inconsistent with his prior statements and the January 11, 1995 letter from USPS. We again note that the March 1996 application documented that the Veteran had earned $22,200 within the prior 12 months. When weighing the probative value of evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). While VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party, personal interest may affect the credibility of the evidence. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). We find the Veteran's statements regarding being unemployed since December 1991 and 1992 are lacking probative value, particularly in light of his original reports that he was still employed in January 1995 and had earned $22,200 in the previous 12 months. We acknowledge the OPM report that the Veteran last worked in March 1992 and the report from SSA that the Veteran did not have income reported for 1994. However, as discussed above, the Veteran has reported receiving income in 1994. Although the September 2019 JMR raised the issue of the Veteran's works status prior to January 11, 1995, the pay stubs submitted with the OPM report and that were referenced in the JMR do not specify the Veteran's work status. There is no indication that the Veteran was being paid retirement benefits or workers compensation, and review of the available records from the Veteran's former employer do not indicate that income in 1994 or 1995 would have been such. Furthermore, the January 11, 1995 letter from USPS shows the Veteran was informed that his work responsibilities were being reassigned, suggesting employment up until that date. Regarding the absence of income reported by SSA for 1994, the Board acknowledges that the report indicates the Veteran did not report income to SSA for that year. Again, however, such a finding is at odds with the Veteran's original report that he had income in 1994 and that he was employed during that year. The Board also notes that the May 2014 SSA document notes no taxed Social Security earnings for years in which the Veteran has reported being employed. As such, the Board finds that the SSA report is of minimal probative value as to whether the Veteran was able to obtain substantial and gainful employment prior to January 11, 1995. In sum, the Veteran is already assigned the earliest effective date allowable under applicable law. The effective date for an award of increased compensation will typically be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2). Here, the date of his claim for a TDIU was January 24, 1995. We note that the Veteran's TDIU application was incorrectly date-stamped as having been received on January 24, 1994. The Veteran's signature is dated January 20, 1995, and he explicitly referred to a September 1994 hospitalization and the January 11, 1995 letter from USPS on the form. The claim was not received on January 24, 1994; the date of claim is January 24, 1995. We accept that the Veteran meets the schedular requirements for a TDIU effective January 24, 1994. However, the Veteran's January 1995 TDIU application reflects income from work during the prior 12 months above the poverty threshold, suggesting gainful employment during 1994. The current effective date of January 11, 1995 was assigned based on a letter from USPS dated January 11, 1995 wherein the Veteran was informed that he was being unassigned as a letter carrier due to being permanently unable to work all of the duties of his normal assignment. January 11, 1995 is the earliest date it was factually ascertainable that the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16. The Veteran did not meet all the requirements for a TDIU prior to January 11, 1995. The evidence shows that he remained substantially, gainfully employed ad earned wages above the poverty threshold prior to January 11, 1995. As explained above, the Veteran's subsequent reports that he became unemployed or otherwise incapable of substantially gainful employment prior to January 11, 1995 are inconsistent with his earlier reports and are less credible than his initial reports. Therefore, the criteria for an effective date of January 11, 1995, but no earlier, for the grant of entitlement to a TDIU have been met. Based upon the facts found, the Veteran is entitled to a TDIU as of January 11, 1995. The criteria for an effective date earlier than January 11, 1995 for the grant of entitlement to a TDIU have not been met. 38 U.S.C. §§ 1555, 5110; 38 C.F.R. §§ 3.400, 4.16. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.