Citation Nr: 21042840 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-16 998 DATE: July 14, 2021 ORDER Entitlement to an effective date prior to June 1, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is granted, subject to the criteria applicable to the payment of monetary benefits. INTRODUCTION The Veteran served on active duty from July 1974 to July 1977. In March 2019, the RO granted the Veteran's claim for a TDIU effective June 1, 2016 and provided staged ratings for the Veteran's acquired psychiatric disabilities. In July 2019, the Board denied the Veteran's claim for increases in the "staged" ratings for his acquired psychiatric disorders. The Board did not address the issue of an earlier effective date for TDIU. The Veteran appealed the Board's decision, pro se, to the Court of Appeals for Veterans Claims (Court). In his appeal, the Veteran specifically asserted the Board failed to address entitlement to an earlier effective date for a TDIU as part of his acquired psychiatric disorder increased rating claim. In its November 2020 decision, the Court remanded the case and instructed the Board to decide whether the Veteran is entitled to a TDIU prior to June 1, 2016. The Court also instructed the Board to address whether the Veteran was notified of his rights to appeal the RO's November 2018 rating decision. In a November 2018 rating decision, the RO effectuated a Board grant of entitlement to service connection for the Veteran's bilateral knee disabilities, and assigned disability ratings for the knee disabilities effective September 11, 2013. The Veteran was sent a letter on November 26, 2018 notifying him of the rating decision and what to do if he disagreed with the decision. The notification informed the Veteran he must complete and return the enclosed Notice of Disagreement, VA Form 21-0958, by November 26, 2019. VA Form 4107, also enclosed with the notification letter, outlined the Veteran's rights to appeal and notified him the rating decision would be final if he failed to appeal within 1 year of the notification. The Veteran was properly notified of his right to appeal. He did not submit a Notice of Disagreement within one year of the notification. The rating decision became final in November 2019, and as such, the Board does not have jurisdiction to address those issues. FINDING OF FACT The Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities since June 1, 2014. CONCLUSION OF LAW The criteria for an earlier effective date for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to an earlier effective date of June 1, 2014 for a TDIU. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103a or 38 C.F.R. § 3.159 before the Board decides the claim. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If the earliest date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Factual Background and Analysis As noted above, by way of a November 2020 memorandum decision, the Court determined the Board failed to address whether an earlier effective date was warranted for the assigned TDIU, as part and parcel of the Veteran's acquired psychiatric disorder increased rating appeal. In his appeal to the Court, the Veteran specifically indicated he "became too disabled to work on June 1, 2014." Initially, the Board notes service connection was established for PTSD and major depressive disorder, rated as 30 percent disabling prior to November 14, 2014, and 50 percent thereafter. The Veteran has also been service connected for a cervical spine strain, rated as 20 percent disabling; right knee instability associated with right knee strain, rated as 20 percent disabling; left knee instability associated with left knee strain, rated as 20 percent disabling; right knee strain associated with cervical spine strain, rated at 10 percent disabling; and left knee strain associated with cervical spine strain, rated at 10 percent disabling. Effective September 11, 2013, the Veteran's combined disability rating was 70 percent. Further, the Veteran's left knee disabilities, right knee disabilities, and cervical spine disability share a common etiology. As such, as of September 11, 2013, the Veteran satisfied the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds his service-connected bilateral knee disabilities, cervical spine disability, and acquired psychiatric disorders have been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. In his application for TDIU benefits, the Veteran stated he worked as a letter carrier for the United States Postal Service until May 31, 2014. After that date, the Veteran asserts he could no longer work due to his service-connected disabilities. The Veteran's job, along with most other jobs, required the Veteran to be able to attend a normal 8-hour work day. The Board also notes the Veteran has a high school diploma, and no other education or training. The Veteran attended a VA knee examination and a cervical spine examination in February 2015. Due to his bilateral knee and cervical spine disabilities, the Veteran's has weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting. Additionally, the Veteran uses a cane all the time for pain and stability, and a wheelchair when available to enter buildings. The examiner noted the Veteran had stiff posture, a limp, and slow gait due to his neck and knee pain. VA psychiatric examinations in February 2015 and March 2019 identified the following symptoms: panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, and disturbance of motivation and mood. Additionally, a March 2019 individual unemployability statement found the "Veteran has panic attacks, irritability, and suspiciousness that would interfere with his ability to work." The Veteran's VA treatment notes show the Veteran experiences on-going passive suicidal ideation and monthly panic attacks. In a January 2014 treatment note, the Veteran's private therapist stated Veteran "is profoundly inhibited by his anxiety, depression, and anger." Additionally, the Veteran's VA provider noted she wouldn't recommend the Veteran seek employment at that time due to his acquired psychiatric disabilities. In sum, affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence shows his service-connected bilateral knee disabilities, cervical spine disability, and acquired psychiatric disabilities are sufficiently severe to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background since June 1, 2014. Accordingly, a TDIU is warranted from that date. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.