Citation Nr: 22014136 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-44 103 DATE: March 11, 2022 ORDER Entitlement to an effective date prior to March 10, 2015, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. There is no legal or factual basis for the assignment of an earlier effective date for the grant of service connection for PTSD. 2. The Veteran's service-connected disability precludes him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 10, 2015, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110, 5121; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2015 and January 2016 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The matters were previously before the Board in March 2021 when they were remanded for further development. The issue of entitlement to an earlier effective date for the award of service connection for PTSD was remanded in order for the RO to adjudicate the Veteran's intertwined claim of clear and unmistakable error (CUE) in a prior March 2004 rating decision. At the time of the Board's decision, the RO had not adjudicated this issue. See Phillips v. Brown, 10 Vet. App. 25 (1997) (Holding that CUE is a distinct claim.) In a March 2021 rating decision, the RO addressed whether CUE had been committed. The Board is cognizant of the arguments contained in the February 2022 post-remand brief. However, the March 2021 rating decision was issued under the modernized review system and an appeal was filed in the evidence-submission lane. The issue will be the subject of a future decision by the Board. 1. Entitlement to an effective date prior to March 10, 2015, for the grant of entitlement to service connection for PTSD The Veteran contends that he should be granted an earlier effective date than March 10, 2015, for the award of service connection for PTSD. He essentially claims that the effective date for his PTSD should be from the date of his claim in October 2003. See August 2021 correspondence. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2014). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b) (2014). Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). However, an effective date for increased disability compensation may be earlier than the date of receipt of the application. In such cases, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o). "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one-year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran filed a claim for PTSD, a nervous condition, and depression in October 1999 which was denied in a February 2000 rating decision. The Veteran did not file a notice of disagreement (NOD) and the record does not include any VA treatment records that were constructively before the RO within one year of the February 2000 rating decision. Therefore, the February 2000 rating decision became final. In October 2003, the Veteran submitted medical records showing treatment for depression, which the RO interpreted as a request to reopen his previous claim. In March 2004, the RO denied the claim for entitlement to service connection for PTSD because no new and material evidence was submitted. The Veteran did not file a NOD and the record does not include any VA treatment records that were constructively before the RO within one year of the March 2004 rating decision. Therefore, the March 2004 rating decision became final. On March 10, 2015, the Veteran requested a VA examination for his military sexual trauma (MST), which the RO interpreted as a request to reopen his previous claim. In a September 2015 rating decision, the RO granted service connection for PTSD at 70 percent disabling from March 10, 2015, the date of the Veteran's claim. The Board has thoroughly reviewed the evidence of record to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for PTSD after the final March 2004 rating decision and prior to March 10, 2015. Although the evidence includes a motion to revise the March 2004 rating decision which denied PTSD based on CUE submitted on March 9, 2015, the Board notes that a CUE motion and a claim seeking an earlier effective date are not the same. See Phillips v. Brown, 10 Vet. App. 25 (1997). An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). As noted in the introduction, the CUE claim is now in the modernized review system. In sum, the Board can find no evidence that there was a pending, unadjudicated claim for service connection prior to March 10, 2015. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). A specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 C.F.R. § 3.151(a). Having determined that the Veteran's most recent claim following a prior final denial was filed on March 10, 2015, the Board must now determine when entitlement to service connection arose. As noted above, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran had PTSD that was linked to his service prior to the date of his claim, his March 2015 claim is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law. In sum, the Board finds that that an earlier effective date than March 10, 2015, for the grant of service connection for PTSD is not warranted here. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is against the Veteran's claim and his appeal must be denied. 2. Entitlement to a TDIU The Veteran contends that he is unable to sustain substantially gainful employment as a result of his service-connected PTSD. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall 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). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. When determining whether the criteria for a TDIU are met, the Board is required to include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). The Veteran has been awarded service connection for PTSD at 70 percent disabling from March 10, 2015. The record reveals that the Veteran has not worked full time since September 2015, when he worked as a maintenance worker at a hospital. See December 2015 VA Form 21-4192. The Veteran's work history includes working for the United States Postal Service (USPS) as a mail carrier for 18 years, followed by working at an automotive retailer, and then a dollar store as a general laborer. See December 2015 VA Form 21-8940 and February 2020 Board hearing transcript. The evidence of record includes VA treatment records from October 1996 showing that the Veteran was admitted for suicidal ideation and depression secondary to the stresses of his job. The Veteran was noted to obtain treatment for "job related problems that are causing him temper problems and depression." It was noted that he did not get along with his supervisor, leading him to lose his temper often. An August 2012 private mental status examination report shows that the Veteran reported mental health problems that resulted in him being unable to manage stress, noise, and crowds. He stated that his conditions began to impact his work in December 2009. The Veteran reported that while working for USPS, he began to lose his ability to manage stress and was not able to cope with the Postmaster. The private examiner, a licensed psychologist, noted that the Veteran continued "to struggle with coping with stress." The Veteran was noted to have had a suicide attempt in the mid-1990's due to being stressed at work. The private psychologist opined that the Veteran would likely "have difficulty managing stress in employment settings for the duration of a full-time schedule of 40 hours." In December 2015, the Veteran submitted a statement from his former supervisor regarding his employment with USPS. His former supervisor noted that as a result of the medications the Veteran was taking, it was "not out of the ordinary for him to be agitated- or lash out if you say anything or ask a question." The supervisor noted that potential light duty assignments were considered, but he did not have anything for the Veteran to do at that time. A February 2020 statement from the Veteran's spouse indicates that she noticed him "coming home from work mad and upset with his co-workers and supervisors." She stated that the Veteran changed jobs "often after being mad, frustrated and having anger issues with management." The Veteran's VA PTSD examinations show that he has symptoms of depressed mood, anxiety, suspiciousness, panic attacks, mild memory loss, impairment of short- and long-term memory, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. See September 2015 and August 2021 examinations. After a careful review of the evidence of record, the Board finds that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. The Veteran's work history includes working for the USPS, an automotive retailer, a dollar store, and at a hospital. As noted by a licensed psychologist in the August 2012 private mental examination, the Veteran's PTSD symptoms result in him having difficulty managing the stresses of full-time employment. Such stress has led to an attempted suicide. Additionally, the evidence of record includes statements from the Veteran's spouse as well as his former supervisor noting that the Veteran would frequently get angry or lash out while at work. As such, the Board finds that the Veteran's PTSD symptoms preclude him from maintaining substantially gainful employment. Thus, the Board finds that the criteria for entitlement to a TDIU have been met in this case and the claim may be granted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.