Citation Nr: 21032788 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 15-26 923 DATE: May 28, 2021 ORDER Entitlement to an effective date of January 1, 2013, but no earlier, for a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The preponderance of the evidence establishes that the Veteran's service-connected disabilities produced total occupational impairment no earlier than January 1, 2013. CONCLUSION OF LAW The criteria for an effective date of January 1, 2013, but no earlier, are met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from August 1989 to August 1994. A March 2020 decision of a Department of Veterans Affairs (VA) Regional Office granted TDIU effective October 1, 2013. The matter was remanded in March 2021 to develop the Veteran's claim as to her employment history and issue a supplemental statement of the case (SSOC). VA sent correspondence to the Veteran in April 2021 requesting additional information, but no response was received. An SSOC was issued in May 2021. There has been substantial compliance with the Remand directives. Entitlement to TDIU prior to October 1, 2013. The effective date for an increase is the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for an increase is the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). The term "substantially gainful occupation" is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Prior to October 1, 2013, the Veteran was service connected for posttraumatic stress disorder (PTSD) rated 50 percent disabling; noncompensable facial acne; and genital herpes simplex rated 0 percent disabling prior to April 23, 2012 and 30 percent thereafter. Her combined rating was 50 percent prior to April 23, 2012 and 70 percent thereafter. She met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) from April 23, 2012. As discussed in the March 2021 Remand, there is some ambiguity as to the Veteran's employment history. She contends that she had total occupational impairment due to PTSD from August to December 1994 as evidenced by brief periods of employment. See June 2020 Form 9. This is contradicted by evidence indicating that she was completing college coursework during that period, reported no such history of occupational impairment in mid-1995, and was pursuing a bachelor's degree thereafter. See July 1995 VA Examination. She concedes that she was able to work as an orthodontics specialist from 1996 to 2001 despite difficulty with her psychiatric symptoms. See June 2013 VA Examination. The Veteran appears to have left that employment after moving to a new state in 2002. She contends that she was unable to work from 2002 to 2006 but offers little detail as to the frequency and duration of her psychiatric symptoms, medical evidence establishing total occupational impairment for this period, or specifics regarding her efforts to obtain employment. See October 2018 NOD. She moved again and was employed as a substitute teacher from 2006 to 2009 in Japan. Although she reported missing eight months of employment during an identical time period per a September 2018 VA Form 21-8940, she described no such impairment when reporting her occupational history in June 2013. From August 2010 to October or November 2011, she was employed full-time as an interpreter for a school district and initially reported no time lost from illness (a November 2018 statement reports three days lost due to disability in the prior year of employment.) See September 2018 VA Form 21-8940. She reported overlapping employment from June 2011 to September 2013 as an interpreter at a medical center in which she ostensibly had nine months of time lost due to illness; no specifics were offered as to when this occurred. VA treatment records note the Veteran's continued employment as an interpreter through 2012 into 2013. When seeking treatment in May 2013, she described only working three to four hours per month as an interpreter and later reported only working 17 hours in the first five months of 2013. See June 2013 VA Examination. In April 2015, she reported last working in 2011 despite evidence that she was employed until 2013. (Continued on the next page) The preponderance of the evidence supports a finding of total occupational impairment from January 1, 2013, the approximate date that objective evidence indicates a significant reduction in working hours such that the Veteran's income did not exceed the poverty threshold for an individual. However, the objective evidence does not support a finding of total occupational impairment prior to that date. Her employment as an interpreter at the school district was gainful as she was employed approximately full-time, earned a significant annual income, and had little time lost due to disability. As to her subsequent work as an interpreter at the medical center prior to January 1, 2013, contemporaneous evidence merely noted her employment without providing information on hours worked. The Board recognizes the Veteran's assertions that her last employment was essentially marginal throughout due to reduced working hours and time lost from illness. However, she is not a credible historian. Per the preceding discussion, her reporting of occupational history in the years following her last employment is often inconsistent with earlier accounting. The Board affords greater weight to evidence closer in time to the relevant period as it is more likely an accurate reflection of her history than later contradictory statements. Accordingly, an effective date of January 1, 2013, but no earlier, for TDIU is warranted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alhinnawi, Mohammad 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.