Citation Nr: 21040663
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 15-43 918
DATE: July 6, 2021

ORDER

An effective date of February 4, 2009, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) is granted. 

FINDING OF FACT

Resolving all reasonable doubt in his favor, the Veteran was unable to engage in substantially gainful employment due to his service-connected disabilities as of February 4, 2009.

CONCLUSION OF LAW

The criteria for an effective date of February 4, 2009, but no earlier, for the award of TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from July 1970 until his honorable discharge in July 1973.

This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

This case comes before the Board on appeal from November 2015 rating decision by the Portland, Oregon, Regional Office of the United States Department of Veterans Affairs (VA), which awarded TDIU benefits with an effective date of July 22, 2015.

In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). 

In a March 2017 decision, the Board denied the Veteran's claim for earlier effective date for the award of TDIU benefits. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand (JMPR) submitted by the parties, the Court entered an order on February 1, 2021, vacating the Board's decision and remanding the matter to the Board for readjudication. Within the JMPR, the parties stipulated that the Board failed to adequately address the factors discussed in Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) when denying an earlier effective date for the award of TDIU benefits. The case now returns to the Board for readjudication. 

TDIU Benefits

A request for TDIU is not a separate claim for benefits but rather "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule." Norris v. West, 12 Vet. App. 413, 42021 (1999). According to 38 C.F.R. § 4.16(a), a veteran who does not qualify for a schedular 100 percent disability rating may be entitled to TDIU if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities and:

1.	The veteran has one service-connected disability rated at 60 percent or more; or

2.	The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. 

If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disability. 38 C.F.R. § 4.16(a). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507.

"Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 38 Vet. App. at 73. When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider:

1.	The veteran's history, education, skill, and training;

2.	Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

3.	Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Id. (citations omitted). The Board is precluded from considering the Veteran's age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286. 

The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72 (2019); 38 C.F.R. § 4.16(a). Marginal employment may be held to exist on a facts-found basis, including but not limited to employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statutes or VA regulations, but the Board finds that it generally means a work environment in which the employer makes special and significant accommodations for a veteran without reducing the veteran's earnings or benefits.

In short, the economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and that the noneconomic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73.

The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 7576.

TDIU Effective Date

Generally, the effective date for an initial award TDIU is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1). As TDIU cannot be awarded absent a service-connected disability, "[t]he effective date of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based." Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). Thus, two effective dates are possible in TDIU cases:

1.	If TDIU is warranted at the time of an initial service connection for a disability on which TDIU is based, then the date on which the criteria is met or the date TDIU was claimed, whichever is later (38 C.F.R. § 3.400(o)(1)); or

2.	If TDIU is warranted based on an already service-connected disability, then, the date it was factually ascertainable that the Veteran was unable to secure or follow substantially gainful employment within the year preceding the claim for TDIU; otherwise, the date on which the criteria was met or the date TDIU claimed, whichever is later (38 C.F.R. § 3.400(o)(2); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007)).

Analysis

Procedural History

Before addressing the merits of the Veteran's claim, it is necessary to discuss how the claim for TDIU initially arose in this case because it ultimately affects the Board's legal analysis and ability to award an earlier effective date.

On September 24, 2008, the Veteran field a claim for service connection for posttraumatic stress disorder (PTSD). In January 2009, the VA Regional Office granted service connection for PTSD, awarded a disability rating 30 percent, and assigned an effective date of September 24, 2008.

In February 2009, the Veteran filed a claim for service connection for a right knee disability. In March 2009, the Veteran filed a claim for an increased rating for his service-connected PTSD. In a May 2009 decision, the VA Regional Office denied service connection for a right knee disability and denied a higher rating for service-connected PTSD. 

Subsequently, the VA Regional Office issued a January 2013 decision in which it did the following:

	Granted service connection for right knee torn medial meniscus status post arthroscopic surgery, with surgical scar, assigned a disability rating of 10 percent, and assigned an effective date of February 13, 2009;

	Assigned a disability rating of 100 percent for right knee torn medial meniscus status post arthroscopic surgery, with surgical scar effective November 25, 2009, based on surgical or other treatment necessitating convalescence;

	Assigned a disability rating of 10 percent for right knee torn medial meniscus status post arthroscopic surgery, with surgical scar effective February 1, 2010; 

	Granted an increased disability rating of 70 percent for service-connected PTSD effective September 24, 2008; and

	Inferred a claim for TDIU, which it deferred pending subsequent development.

Accordingly, the Veteran did not file a claim to initiate TDIU benefits in this case. Instead, the VA Regional Office inferred a claim based on the Veteran's initial action seeking service connection for a right knee disability and increased rating for service-connected PTSD. Consequently, the claim for TDIU relates back to the Veteran's initial application for service connection for PTSD, which he filed on September 24, 2008, as he continuously pursued his claim for an increased rating from the January 2009 VA Regional Office decision awarding service connection for PTSD. Therefore, the period for which the Board must consider an earlier effective date for the award of TDIU benefits is from September 24, 2008. 

The Period from September 24, 2008 through February 3, 2009

The Board finds an award of TDIU benefits is not warranted for the period from September 24, 2008, through February 3, 2009.

First, the Board observes that during this time period, the Veteran was service connected for the following disabilities with associated ratings:

	PTSD  70 %

	Tinnitus  10%

	Bilateral Hearing Loss  0%

As such, the Veteran satisfied the schedular criteria during the period; that is, he had one service-connected disability, PTSD, rated at 60 percent or more. The Board notes the Veteran did not meet the schedular criteria prior to September 24, 2008, nor has he, or the record, reasonably raised a claim that TDIU should be awarded prior to September 24, 2008.

Nevertheless, the Board finds the Veteran was not unemployable by reason of these service-connected disabilities during this period. Most significant to the Board's conclusion is that the Veteran was employed during this period. The Board finds that the Veteran worked full-time during this period while his PTSD, tinnitus, and bilateral hearing loss symptomatology was present. This indicates to the Board that his symptoms did not interfere with his ability to maintain his employment position. The evidence indicates he was employed by a company during this period and earned $50,167.87 during the twelve months preceding his last date of employment, February 3, 2009. VA Form 21-4192 (received by VA on May 23, 2013). The poverty threshold for one person, under the age of 65 in 2009 was $11,161.00. See United States Census Bureau, Poverty Thresholds, 2009, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed June 16, 2021). 

During his September 2018 Board hearing, the Veteran testified in passing that prior to being laid off from his position in February 2009, the company had him on a "reduced job." To the extent the Veteran was asserting that he was in a protected environment due to his service-connected disabilities, the Board finds the evidence weighs against his assertion. The company for which the Veteran worked submitted VA Form 21-4192 and indicated that the Veteran was employed as a technical writer and concessions were made for his "constant neck pain." The Board finds the company's statement that concessions were made for the Veteran's neck disability to be credible. The fact that the company did not state any other concessions made for any other disability is highly probative. The Board finds no reason for the company to state one concession but omit others. The Board finds the company has nothing to gain by doing so. The company's statements are more probative than the Veteran's generalized testimony. Therefore, the Board finds that the Veteran was only in a protected environment due to his nonservice-connected neck disability and not due to his service-connected PTSD, tinnitus, or bilateral hearing loss. 

Based on the above, the Board concludes the Veteran maintained substantially gainful employment for this period. He made well-above the 2009 poverty threshold and was not in a protected environment due to his service-connected disabilities. Accordingly, the Veteran is not entitled to TDIU benefits for this period. 

The Period from February 4, 2009

The Board finds an award of TDIU benefits is warranted for the period from February 4, 2009. 

First, the Board observes that during this time period, the Veteran was service connected for the following disabilities with associated ratings:

	PTSD  70 %

	Tinnitus  10%

	Bilateral Hearing Loss  0%

	Right knee torn medial meniscus status post arthroscopy surgery  10% (as of February 13, 2009)

As such, the Veteran satisfied the schedular criteria during the period; that is, he had one service-connected disability, PTSD, rated at 60 percent or more. 

Second, the Board finds the Veteran was unable to secure and maintain substantially gainful employment during this period. 

Beginning with the noneconomic component, resolving reasonable doubt in the Veteran's favor, the Board finds this component benefits the Veteran's position. Although the Veteran marked that he only completed two years of high school on his April 2013 VA Form 21-8940 (Application for TDIU), the Board finds that other more probative evidence of record, when taken as a whole, indicates the Veteran did complete high school. See August 1973 VA 21E-1990 (indicating completion of high school); Social Security Disability Report (indicating completion of high school and one year of college); April 2009 Independent Medical Exam (indicating completion of high school). As to additional training, in 1994, he obtained training for helicopter repair and he obtained a pilot's license.  

His past work experience included positions as a technical writer from 2005 to 2009, a helicopter mechanic from 1985 to 1996 and from 2000 to 2009, a pilot from 1996 to 2000, and as a sheriff's deputy from 1974 to 1987. Reasonably, the Veteran's past employment as sheriff's deputy, mechanic, and pilot required physical demands of lifting, walking, running, gripping, standing, kneeling, and sitting for prolonged periods. As part of the writing position, he stated he was required to sit at a desk for prolonged periods. The mental demands required of a pilot are quite high. Common sense tells us that a pilot must have the ability to concentrate, handle stress, have attention to detail, and think quickly. Likewise, as a law enforcement officer, handling stress and dealing with people is a major part of the position. As mechanic, attention to detail is important. And as a technical writer, the Veteran's former employer provided evidence that his position required focus, attention to detail, and ability to keep pace with production goals. 

At his Board hearing, the Veteran testified that he was no longer able to handle his position as a technical writer as of February 2009. He cited his inability to walk up stairs (his position was located on the second floor) due to his right knee, his use of opioid medication for his right knee symptoms, and his requirement to recline and elevate his right leg often as the primary bases for being unemployed. See September 2014 Board Hearing Transcript, at 68. He also provided statements to VA that due to his PTSD he was unable to continue his position because he had difficulty understanding complex commands, had impairment of short- and long-term memory, and had general difficulty establishing and maintaining effective relationships. VA Form 21-4138 (received by VA March 2009). 

The Board first addresses the relevant evidence associated with the Veteran's service-connected PTSD. In December 2008, the Veteran was provided with a VA examination on his original application for service connection for PTSD. That examiner found that the Veteran suffered from deficiencies in thinking, family relations, work, mood, and education. Primarily, the examiner found the Veteran experienced symptoms that involved social isolation, emotional detachment, irritability, and concentration issues. In July 2015, the Veteran was afforded a VA-contracted examination to address the severity of his PTSD symptoms. That examiner concluded that the Veteran's symptoms included, but not limited to, depressed mood, anxiety, chronic sleep impairment, memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and suicidal ideations. The Board finds it significant that the 2008 and 2015 examiners found the Veteran suffered from similar symptoms at each examination, and the VA Regional Office assigned a 70 percent disability rating effective September 24, 2008, based on the 2015 examination. 

The Veteran submitted an evaluation report from his employer dated October 2008 in which it informed the Veteran that his work was below the quality expected of him. Specifically, the evaluation pointed out that the Veteran's attention to detail was lacking as was his production goal. He also submitted a co-worker's statement who worked with him when he was a technical writer. The co-worker stated that she observed the Veteran have trouble remembering procedures for following instructions, and he struggled to learn new computer programs. She described him as argumentative and stubborn, which resulted in conflict with supervisors and co-workers. The Veteran's spouse submitted a statement in which she said that the Veteran was impatient and did not engage with others. 

Alone, the Board finds his service-connected PTSD did not prevent him from securing and maintaining substantially gainful employment. Notably, he worked with his PTSD symptomatology until he was laid off in February 2009, which his company attributed to a reduction in workforce. Although the Veteran attributes his layoff to his disabilities, the Board finds the employer's reasoning more credible as the Veteran's statement is speculation without evidence of intent to lay him off due to his disabilities. That being said, the Board finds that, when his PTSD is coupled with his service-connected right knee disability, the Veteran became physically and mentally unable to secure and maintain substantially gainful employment. 

On February 13, 2009, the Veteran filed a claim for service connection for a right knee disability. He was afforded a VA examination in 2012. That examiner determined the Veteran suffered from a torn right medical meniscus and right knee instability. He had reduced range of motion in his right knee. Prior to this examination, during a July 2009 VA orthopedic surgery consult, the Veteran told an orthopedist for the preceding six months he lost functional ability in his right knee while going up stairs, heard popping in his knee, and observed swelling that ran down the whole leg. On exam at that time, his range of motion was reduced, effusion on the knee was documented, and patellofemoral pain. He had injections to relieve his pain in August 2009. He took opiates for his pain during the period. His right knee symptoms worsened to the point he required surgery on November 25, 2009. Subsequently, he developed deep venous thrombosis involving right posterior tibial and peroneal veins. He received service connection for his right knee with a 10 percent disability rating effective February 13, 2009.

During this period, the Board finds the Veteran's service-connected PTSD and right knee disability rendered the Veteran unable to secure and maintain substantially gainful employment. The Veteran was unable to meet the mental demands associated with employment due to his PTSD symptomatology. He was unable to meet the physical demands associated with employment due to his right knee disability and associated opiate medication. 

As to the economic component, the evidence indicates the Veteran's last day of full-time work occurred on February 3, 2009, at the company where he was employed as a technical writer. Since that time, the Veteran has not been employed, either full-time or part-time. He applied for Social Security Disability benefits in February 2009, immediately following his last day of full-time work. He was awarded full benefits in a March 2011 Social Security Administration decision. That is the Veteran's only source of income based on the record. 

Overall, the Board finds the Veteran would not have been able to secure and maintain substantially gainful employment in light of his service-connected disabilities during this period. Although reasonable accommodations must be made by employers under the Americans with Disabilities Act, the Veteran's opiate medication and PTSD symptomatology would likely require accommodations beyond what would be reasonable, such as minimal to no contact with co-workers, supervisors, and the public, close monitoring while taking the medication, and extraordinary training and a very low production rate, even in a position that requires minimal to no physical demands.

Accordingly, the Board finds that from February 4, 2009, the Veteran's service-connected disabilities, taken as whole, prevented him from securing and maintaining substantially gainful employment. Therefore, TDIU benefits are awarded as of February 4, 2009. 

The Board recognizes that the Veteran did not become service-connected for his right knee disability under February 13, 2009. Yet, the Board is granting an effective date for TDIU of February 4, 2009. The Board does so under the belief that the Veteran's right knee symptomatology existed as of February 4, 2009, even though he filed his claim on February 13, 2009. The Board concludes this is consistent with 38 C.F.R. § 3.400(o)(2).

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.