Citation Nr: 21030290 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-22 918 DATE: May 18, 2021 ORDER An effective date of October 3, 2014, but no earlier, is granted for the award of service connection for type 2 diabetes mellitus, subject to the regulations governing payment of monetary awards. is granted. Entitlement to an effective date earlier than December 17, 2015 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to an effective date of September 2, 2015, but no earlier, for eligibility to Dependents' Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. The Veteran's diabetes mellitus type II was first diagnosed on October 3, 2014. 2. The Veteran did not submit any correspondence prior to October 2014 indicating an intent to claim entitlement to service connection for diabetes mellitus. 3. Prior to December 17, 2015, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. 4. The Veteran has had a 100 percent total evaluation since September 2, 2015. Prior to September 2, 2015, the Veteran did not have a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 3, 2014, but no earlier, for the grant of service connection for diabetes mellitus have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. 2. The criteria for an effective date earlier than December 17, 2015 for the grant of a TDIU rating have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400, 4.16. 3. The criteria for an effective date of September 2, 2015, but no earlier, for the award of basic eligibility to DEA benefits have been met. 38 U.S.C. §§ 3501, 3512, 5107, 5113; 38 C.F.R. §§ 3.102, 3.157, 3.400, 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to June 1971. In a March 2019 decision, the Board, inter alia, previously denied the issues listed on the first page of this decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims. In an August 2020 Memorandum Decision, the Court, inter alia, vacated and remanded the issues on appeal for additional consideration. Effective Date Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Where VA compensation benefits are awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a). In no event shall the increase be retroactive for more than one year from the date of application for the increase or the date of administrative determination, whichever is earlier. 38 U.S.C. § 5110(g). If a claim is reviewed by VA on its own initiative or at the request of the veteran within one year from the effective date of the liberalizing law, then benefits may be authorized from the effective date of the law. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed by VA on its own initiative more than one year after the effective date of the law, then benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the claimant's request more than a year after the effective date of the law, benefits may be authorized for one year prior to the date of receipt of the request. 38 C.F.R. § 3.114(a)(3). However, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. Diabetes mellitus was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of July 9, 2001. The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(2). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. § 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). 1. Entitlement to an effective date earlier than March 31, 2016 for the award of service connection for type 2 diabetes mellitus The Veteran contends that he is entitled to an effective date earlier than March 31, 2016 for the award of service connection for diabetes mellitus type II. While the VA has established an exception for effective dates for presumptive service connection due to herbicide exposure, this rule does not apply to the Veteran's claim. The Board concedes that the Veteran is a Nehmer class member. He is a Vietnam Veteran that was diagnosed with diabetes mellitus due to herbicide exposure, but the Nehmer effective date exceptions do not apply to the Veteran's claim because the claim for diabetes mellitus was not pending between September 25, 1985 and May 3, 1989; nor did the Veteran have a pending claim for diabetes mellitus before the Board by May 8, 2001. The Veteran did not file a claim for service connection for diabetes until October 2014 and was not diagnosed with diabetes mellitus until March 2016. As the Veteran's claim was not pending until more than 13 years after the end date for the liberalizing law, the Nehmer effective date exception does not apply to the Veteran's claim. See 38 C.F.R. § 3.816. On October 23, 2014, the Veteran first filed a claim for entitlement to service connection for diabetes mellitus. In a March 2015 rating decision, the Veteran was denied service connection for diabetes, based on a finding that the Veteran did not have a current diagnosis of diabetes. The Veteran appealed the decision. In an October 2016 rating decision, the Veteran was granted service connection for diabetes mellitus type II, and granted a 10 percent evaluation, effective March 31, 2016, the date the Veteran was diagnosed with diabetes. The Veteran was diagnosed with diabetes mellitus on October 3, 2014. A VA treatment record dated on October 2, 2014 documents a VA physician's report that the Veteran had increased blood sugar and now had crossed over to diabetes mellitus. The VA physician noted that the Veteran's diabetes was controlled without medication but recommended that the Veteran see a dietician for instruction in diet and requested that the Veteran be given a copy of the diabetes handbook. As October 3, 2014 is the date that the Veteran was first diagnosed with diabetes mellitus and it is within one year period from when he first filed the claim, an earlier effective date of October 3, 2014 for the Veteran's diabetes mellitus is granted. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.400(p). There is no evidence indicating that an effective date earlier than October 3, 2014 can be assigned. October 3, 2014 is the earliest date that there is any medical evidence that the Veteran had a diagnosis of diabetes, and there are no claims for diabetes mellitus submitted earlier than October 2014. The regulations that were in effect in 2014 required that VA liberally construe all documents filed by a claimant. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). In this case, however, there are no documents submitted by the Veteran which could constitute a claim of entitlement to service connection for diabetes mellitus prior to October 23, 2014. The Veteran has not asserted that he submitted any other documents which were intended to constitute a formal or informal claim for diabetes mellitus. In the absence of any earlier communication from the Veteran indicating a desire to file a claim for diabetes, the Board finds that an effective date prior to October 3, 2014 is not warranted. The Board is bound by applicable regulations regarding when an effective date may be assigned. In the absence of any claim, either formal or informal, of entitlement to service connection for diabetes prior to October 2014, there is no basis under law to assign an even earlier effective date. 38 C.F.R. § 3.400(b)(2)(i). 2. Entitlement to an effective date earlier than December 17, 2015 for the award of a TDIU A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id. The question of unemployability or the veteran's ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned 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. The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. The Veteran meets the minimum disability rating percentage threshold for consideration of schedular TDIU prior to December 17, 2015. 38 C.F.R. § 4.16(a). Prior to December 17, 2015 the Veteran had a combined total rating of 100 percent from September 2, 2015, including a 100 percent rating for PTSD from September 2, 2015. In the Veteran's VA Form 21-8940, he stated that he completed four years of college, including three years of studies ending in 1973, and an additional year of studies concluding in 2009. The Veteran contends that he became too disabled to work as of August 2011, when he was fired from his job as an Energy Auditor/Inspector and had to change careers to work part time in realty. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The record shows that the Veteran worked on a regular basis between 2011 and 2015. For example, federal tax returns between 2011 and 2013 show that the Veteran was employed full time, earning approximately $33,000 in 2011; approximately $34,000 in 2012, and $35,000 in 2013. VA treatment records show regular references to work by the Veteran prior to December 17, 2015. In January 2014, the Veteran referred to his work as a realtor. In March 2014, the Veteran described working in the office for full days. An April 2015 VA treatment record shows that the Veteran felt anxiety about work and asked about the impact of medication on his continued ability to work. In a September 2015 VA treatment record, the Veteran talked about a personal incident that affected referrals for business. In an October 2015 VA treatment record, the Veteran talked about difficulties with his current work. The Veteran alleges that his employment as a realtor was considered marginal employment. In an April 2021 statement, the Veteran stated that while his gross income prior to December 17, 2015 was above the marginal poverty line, the commissions and contract labor for his wife to do some of the data entry took away a significant share of the income. In the same April 2021 statement, the Veteran provided details about how he lost a large bank contract that used to provide him with a large number of appraisal work and of his challenges within his profession. In an April 2021 letter from the Veteran's attorney, he attached the Veteran's 2013 profit or loss from business tax document and asserted that the Veteran operated under a net loss during that year. Although the Veteran is in receipt of a 100 percent rating for PTSD prior to December 17, 2015, the Veteran's statements, made on a regular basis, show that the Veteran was adequately employed prior to this date. Given the above, the Board finds that the preponderance of evidence weighs against the Veterans' claim of entitlement to an effective date earlier than December 17, 2015 for the award of a TDIU rating. While the evidence documents some occupational impairment prior to that date, the preponderance of evidence does not document that entitlement to a TDIU rating arose prior to December 17, 2015, or in other words, that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to December 17, 2015, as the evidence supports that the Veteran continued to work in the same field for several years prior to this date. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.16. The Board acknowledges that the Veteran has reported that his psychiatric symptoms made working much more difficult prior to December 2015, and this is supported by treatment records and reports of the Veteran's spouse. The Veteran has reported on multiple occasions that his PTSD symptoms interfered with his ability to interact with people and to handle the stress of his job. In September 2011, the Veteran reported to his treatment provider that he had to take time off from work because his severe symptoms were causing problems with interpersonal relations. The evidence also indicates that the Veteran was arrested for assault in August 2014, and he reported having a reduction in work referrals since his arrest. He told his treating psychologist in January 2017 that he was having a lot of trouble working since the assault, that he had trouble focusing, and that he had been largely unsuccessful interacting with others. He wrote in April 2021 that when a buyer or seller acted aggressive towards him, he would feel triggered, go into a state of heightened awareness, and trembled, and he sometimes had to leave and engage in a difference activity. The Veteran also reported being fired from a prior job in 2011, and there is evidence that his problems with anger management caused ongoing difficulties with interpersonal communication that did interfere with his ability to successfully pursue his real estate activities due to his problems with interpersonal communication. The Board acknowledges that the Veteran's capacity for working was declining in the years prior to 2015, and the assault that occurred in 2014 is indicative of very severe problems with impulse control which affected his own psychiatric state and the reputation of his business. Of course when a veteran loses the ability to maintain a job, it rarely happens suddenly, all on one day. The Veteran's medical records show a steady increase in the severity of the impact of his symptoms, and this is reflected in his increasing total disability ratings over the years, including his ratings for PTSD, which increased to from 50 percent to 70 percent in 2008, and then to 100 percent in 2015. The purpose of a TDIU rating, however, is to award it to a veteran when he or she has symptoms of sufficient severity to produce unemployability, and is no longer able to maintain or sustain gainful employment. It is not appropriate to award this benefit for the period preceding this point in time, when a veteran's symptoms were worsening, making full-time employment more difficult, but not preventing it entirely. The purpose of an evaluative rating is to represent, as far as can be determined, the average impairment in earning capacity resulting from the service-connected disabilities. 38 C.F.R. § 4.1. The Veteran's PTSD caused significant impairment of his earning capacity, including the loss of some contracts because of his assault charge, but this decrease in earning capacity is already contemplated by the high 70 percent rating assigned to the Veteran prior to 2015. An award of a TDIU requires not just that a service-connected disability decreased earning capacity, but that the person became completely "unable to secure of follow a substantially gainful occupation." 38 C.F.R. § 4.16. Additionally, the Board finds that the Veteran's employment as a realtor prior to December 17, 2015 was not marginal. As discussed above, the Veteran's income was above the poverty level for all of the years that he provided tax documents for. Additionally, the Veteran has asserted, and his attorney provided a tax document reflecting that the Veteran's business as a realtor was operating under a net loss. The 2013 profit loss tax document reflects that the Veteran's gross income during that year was $39,643. However, the profit loss tax document reflects that the Veteran paid $14,501 for contract labor and $12,817 for a vehicle. In the April 2021 statement, the Veteran stated that he paid his wife to do some of the data entry, however, in the same statement, the examiner stated that his workday generally consisted of occasionally doing appraisals. At no point in the April 2021 statement or elsewhere has the Veteran explained why a vehicle requiring such high yearly cost and $14,501 in one year's worth of data entry was required when his work consisted primarily of performing occasional appraisals. Additionally, the Veteran has not shown that without these expenses, he would be unable to earn his reported income. Further, in the April 2021 statement, the Veteran recounted that he lost a major source of his appraisal income because one the bank employees did not like the appraisal that he provided. However, the April 2021 statement reflects that the Veteran lost that stream of income simply due to the client not liking the appraisal. Additionally, in the April 2021 statement, the Veteran stated that his other sources of income allowed him to operate under a profit loss. The fact that the Veteran had considerable business expenses or that his business was not ultimately profitable does not render this employment "marginal." The Board does acknowledge that the tax documents submitted in April 2021 reflect that the Veteran had decreased income in 2014 and 2015. However, the Board notes that the Veteran's income was above marginal poverty line during both of those years. Further, while the Veteran provided a tax document for his business from 2014 and 2015, the Board notes that the Veteran did not provide complete tax documentation reflecting his income from all forms of employment during those two years. While the Veteran has alleged that his expenses were so great that they resulted in his business being ultimately unsuccessful, the Board does not find that this demonstrates that the Veteran was not, himself, capable of earning an income that was greater than marginal. In conclusion, the preponderance of evidence does not document that the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to December 17, 2015. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to an effective date earlier than December 17, 2015 for eligibility to DEA benefits The Veteran also claims entitlement to an effective date prior to December 17, 2015 for the award of eligibility for DEA benefits under Chapter 35, based upon his argument that he is entitled to an earlier effective date for the award of a TDIU. For the purposes of educational assistance under Chapter 35, the child or surviving spouse of a veteran has basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. In an October 2017 rating decision, the Veteran's evaluation for PTSD was increased to 100 percent, effective September 2, 2015. The Board therefore accepts that the earlier effective date of September 2, 2015 can be assigned for the award of basic eligibility for DEA benefits. The Veteran did not, however, meet the criteria required for basic eligibility to DEA benefits prior to September 2, 2015, as he did not have a permanent and total service-connected disability prior to this time. Entitlement to an effective date earlier then September 2, 2015 is denied. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.