Citation Nr: 21030239 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-20 292 DATE: May 18, 2021 ORDER Entitlement to an effective date prior to June 19, 2014, for service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective April 21, 2015. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to TDIU prior to April 21, 2015, is remanded. FINDINGS OF FACT 1. Service connection for PTSD was granted effective June 19, 2014, the date the Veteran filed his intent to file a claim. 2. The Veteran meets the schedular percentage requirements for TDIU since April 21, 2015, and since that time, the aggregate effect of his service-connected disabilities at least as likely as not prevents him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 19, 2014, for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to TDIU have been met as of April 21, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1988 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned. 1. Entitlement to an effective date prior to June 19, 2014, for service connection for PTSD is denied. An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim received within one year of separation from active service will be assigned an effective date of the day following separation. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran filed his initial claim of service connection for PTSD in December 1994. In a November 1997 rating decision, the RO denied service connection for PTSD. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the November 1997 rating decision. Thus, the November 1997 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). On June 19, 2014, the Veteran filed an intent to file a claim. In October 2014, the Veteran filed a claim to reopen his claim of entitlement to service connection for PTSD. A November 2014 rating decision granted service connection for PTSD, rated as 30 percent disabling, effective June 19, 2014. In April 2015, the Veteran filed a notice of disagreement as to the effective date of service connection for PTSD. The Board finds that an earlier effective date is not warranted based on the Veteran's June 19, 2014 intent to file a claim and October 2014 claim to reopen his claim of entitlement to service connection for PTSD. Thus, the Veteran's claim for an earlier effective date for service connection for PTSD is denied. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board notes that there is no indication new and material evidence resulted from receipt of additional relevant service department records. In addition, the Veteran essentially raised the issue of CUE in the November 1997 rating decision as a basis for entitlement to an earlier effective date for service connection for PTSD for the first time during the February 2021 Board hearing. Pursuant to 38 C.F.R. § 3.105(a), VA must reverse or amend a prior decision "[w]here evidence establishes [CUE]." The U.S. Court of Appeals for Veterans Claims (Court) defines a determination of CUE in a prior adjudication to mean that: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a "determination that there was [CUE] must be based on the record and the law that existed at the time of the prior... decision." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). When attempting to raise a motion for CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). "In order for there to be a valid claim of [CUE],...[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. Id.; see Damrel v. Brown, 6 Vet. App. 242, 245-46 (1994). If CUE is not properly raised, the Board cannot consider CUE as a basis for an earlier effective in its adjudication. Russell, 3 Vet. App. at 313; Fugo, 6 Vet. App. at 43. The Veteran has not filed a CUE claim with the AOJ regarding the November 1997 decision and the AOJ has not adjudicated a CUE claim. Thus, the Board is prohibited from considering CUE in the context of the appeal of the effective date assigned. The Veteran remains free to challenge the November 1997 decision on the basis of CUE by filing an appropriate request with the AOJ. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (the Board and thus the Court lack jurisdiction to address a CUE motion in the first instance). 2. Entitlement to TDIU is granted, effective April 21, 2015. VA will grant entitlement to TDIU when the evidence shows that the 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 sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. 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). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, 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. Id. 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. Id. As previously noted, in June 2014, the Veteran filed an intent to file a claim. In October 2014, the Veteran filed a claim requesting increased ratings for several service-connected disabilities, as well as entitlement to service connection for other disabilities. In appealing the ratings assigned to multiple service-connected disabilities arising from the June 2014 intent to file a claim, the issue of unemployability was raised for the first time for purposes of a TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran). Although the Veteran was assigned a combined 70 percent rating effective June 19, 2014, he did not have any disability rated at 40 percent or more until April 21, 2015. Thus, as of this time, the Veteran satisfied the schedular percentage requirements for TDIU as of April 21, 2015. The issue of entitlement to TDIU prior to April 21, 2015 is remanded, as stated below. The record establishes that the Veteran has a college degree in wildlife biology and that he was employed by the U.S. Forest Service. The record also establishes that the Veteran had some other, unrelated jobs after leaving the U.S. Forest Service, but has been unemployed since 2010 at the latest. An August 2015 VA PTSD examination reflects that the Veteran's service connected PTSD resulted in occupational and social impairment with reduced reliability and productivity. In establishing the diagnosis of PTSD, the VA examiner noted that the Veteran's symptoms included marked diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, and problems with concentration. The August 2015 VA PTSD examiner also noted that the Veteran had disturbances of motivation and mood as well as difficulty in establishing and maintaining effective work relationships. An August 2015 VA examination regarding the Veteran's service-connected fibromyalgia reflects that the Veteran had significant fatigue after 45 minutes of activities such as painting and raking. An August 2015 VA ankle examination reflects that the Veteran's service-connected right ankle disability prevented the Veteran from work that requires walking on uneven ground, and an August 2015 VA knee examination reflects that the Veteran's service-connected left shoulder knee prevented the Veteran from work that requires repetitive squatting or prolonged standing. A March 2016 VA examination regarding the Veteran's service-connected fibromyalgia reflects that this disability resulted in reduced endurance for occupations that involve sustained, repetitive rotation of the head. A March 2016 VA shoulder examination reflects that the Veteran's service-connected left shoulder disability resulted in reduced endurance for occupations that involved sustained or repetitive left arm overhead activity. A March 2016 VA examination regarding the Veteran's IBS reflects that this service-connected disability mildly limited the Veteran's ability to work because he would need ready access to a restroom during the day, particularly on the one to two days a month he experienced diarrhea. In January 2018, the Veteran submitted a Vocational Rehabilitation and Education (VR&E) application. A January 2018 VR&E report reflects the counselor's findings as follows: (1) the Veteran meets the criteria for a serious employment handicap due to the fact that his service-connected disabilities contribute in substantial part to his vocational impairment and he has not overcome the effects of the impairment, (2) the Veteran does not have the training and/or education that qualifies him for suitable employment and he would need more training in a suitable field that does not aggravate his service-connected disabilities, (3) employers may see the Veteran's service-connected disabilities as limiting and his need for accommodations may hinder employers from accepting the Veteran as a viable candidate, (4) the severity of the Veteran's service-connected disabilities coupled with the numerous amount of disabilities may cause potential employers to overlook the Veteran as a viable candidate, and (5) the Veteran's physical limitations, mobility issues, and mental health issues are limiting in a vast majority of occupations, and this, combined with his IBS seriously limit the Veteran to certain vocations and employers that are willing to accommodate these limitations or carve out certain job duties the veteran is unable to perform. In sum, the VR&E counselor determined that the Veteran's service-connected disabilities are so severe that occupational functioning is highly compromised. The Board finds that the aggregate effect of the Veteran's service-connected disabilities precludes him from being able to secure and follow substantially gainful employment. Accordingly, the Board finds that entitlement to a TDIU is warranted effective April 21, 2015. REASONS FOR REMAND 1. Entitlement to service connection for a TBI is remanded. The Veteran was afforded a VA examination regarding his TBI claim in January 2015. The Board finds the January 2015 VA examination to be inadequate for the following reasons. First, in reviewing the evidence, the January 2015 VA examiner noted that there was no indication that the Veteran lost consciousness during a June 1990 in-service assault, however, the Veteran's June 1990 service treatment records indicate that the Veteran did lose consciousness as a result of the assault. Second, in finding that there was no TBI diagnosis, the January 2015 VA examiner noted that the Veteran's separation examination did not indicate any persistent headaches or other residuals suggestive of post-concussive syndrome/TBI. However, the January 2015 VA examiner did not address the Veteran's competent and credible testimony that he has experienced headaches from his time in service to the present. Accordingly, remand for a new VA examination is warranted. 2. Entitlement to service connection for GERD is remanded. The Veteran was afforded a VA examination regarding his GERD in August 2015. The August 2015 VA examiner noted that the Veteran had an upper endoscopy in April 2015, but that the procedure notes were not found. Therefore, it appears as though the VA examiner did not have access to the Veteran's entire medical record. Accordingly, remand for a new VA opinion is warranted. 3. Entitlement to TDIU prior to April 21, 2015, is remanded. The issue of entitlement to TDIU prior to April 21, 2015, is inextricably intertwined with the claims of entitlement to service connection for a TBI and GERD, as the outcome of the Veteran's service connection appeals may change his eligibility for schedular TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's file. 2. Obtain an opinion with a qualified clinician who has not previously opined about the Veteran's claim to determine whether any TBI and/or residuals are related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether the Veteran has had a TBI or TBI residuals at any point during the appeal period. If so, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's TBI and/or TBI residuals began in or are otherwise related to the Veteran's active service. In providing these opinions, the examiner must address the Veteran's (1) in-service assault, which resulted in loss of consciousness, (2) in-service motor vehicle accident, (3) testimony that he has suffered from headaches since his time in service, and (4) testimony that he was exposed to explosions and concussive blasts while in service. The examiner is advised that the Veteran is competent to report his symptoms capable of lay observation, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain an opinion with a qualified clinician who has not previously opined about the Veteran's claim to determine the nature and etiology of the Veteran's GERD. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD began in or is otherwise caused by the Veteran's active service. In doing so, the examiner must address the June 1995 VA examination which notes that the Veteran first experienced dysphasia for solids in boot camp, as well as the Veteran's testimony that he experienced GERD while in service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected IBS or PTSD or by the medications the Veteran takes for his service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms capable of lay observation, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.