Citation Nr: 25005444 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 19-11 538 DATE: April 22, 2025 ORDER An effective date earlier than September 23, 2020, for a total disability based on individual unemployability (TDIU), is denied. ? FINDING OF FACT Prior to September 23, 2020, the Veteran's service-connected posttraumatic stress disorder (PTSD) did not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU prior to September 23, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) with the Marine Corps from June 1980 to October 1980, and on active duty with the United States Air Force from December 1981 to September 1984. The case is on appeal from a March 2019 rating decision. In December 2021, the Veteran testified at a Board hearing. The case was most recently before the Board in December 2023, at which time the Veteran was granted an initial rating of 70 percent for PTSD, and a TDIU effective September 23, 2020. Following an appeal to the United States Court of Appeals for Veterans Claims (Court), the parties entered into a July 2024 joint motion for partial remand (JMPR) that was granted by an August 2024 Order. By Court Order, the portion of the Board's December 2023 decision denying a TDIU prior to September 23, 2020, was vacated and remanded to the Board. The Veteran did not wish to pursue appeal of an initial rating higher than 70 percent for PTSD, and that portion was dismissed by the Court and is no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU prior to September 23, 2020. The Veteran contends that a TDIU is warranted since 2018, asserting his PTSD has prevented him from securing or maintaining substantially gainful employment since that time. See November 2018 NOD; September 2023 VA Form 21-8940; November 2024 Appellate Brief. Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more 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. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: o The veteran's history, education, skill, and training; o Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., 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; o 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). VA is responsible for determining whether the evidence supports the claims or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claims, in which case the claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Analysis In May 2019, the Veteran applied for disability benefits with the Social Security Administration (SSA). In a September 2021 decision, an Administrative Law Judge (ALJ) for the SSA determined that the Veteran was disabled since September 23, 2020, pursuant to the Social Security Act, with a primary diagnosis of disorders of the back, and secondary diagnosis of trauma and stressor-related disorders. It was found that from that date, the Veteran's PTSD and major depressive disorder rose to an ascertainable level of severity, that when combined with the primary diagnosis of his back disorder, resulted in impairments to the ability to perform basic work activities. See September 2021 SSA Decision. In September 2023, the Veteran submitted an August 2023 assessment conducted by a private vocational consultant. She stated in her opinion, that it is more likely than not that the Veteran is unable to secure and follow substantially gainful employment to include sedentary unskilled work, as a result of his service-connected PTSD. To support her conclusion, the vocational assessor detailed the Veteran's work history, and the Veteran's inability to the meet the requirements of employment as a result of his PTSD symptoms. The Board granted the Veteran a TDIU in the December 2023 decision, finding an effective date of September 23, 2020. After an appeal to the Court, the issue of the effective date for a TDIU was remanded per the terms of the July 2024 JMPR. The JMPR stated that the Board erred in failing to provide adequate reasons and bases for its decision to deny an effective date earlier than September 23, 2020 for the award of TDIU. Specifically, the JMPR indicated that the Board failed to explain why it rejected the vocational assessment's recommended effective date, even though the Board found this assessment "very persuasive," as it was materially favorable to the Veteran. See July 2024 JMPR. The JMPR citation to a Board's finding that the assessment was "very persuasive" is perplexing. In the December 2023 Board decision, it states the following: The rationale provided by the August 2023 vocational expert is persuasive given the specific citations to the Veteran's claims file, medical records, and lay statements. The opinion included consideration of the Veteran's personal experiences including education, varied work history, and the historical effect of his PTSD symptoms on his professional life. Given the totality of the evidence of record, to include the Veteran's level of education, skill, and history of employment, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. By erroneously adding the descriptor "very" to the term "persuasive," suggests that the Board gave higher evidentiary weight to the September 2023 expert opinion than it did. According to Merriam-Webster, "very" means "to a high degree" or "exceedingly." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/very, Definition 1 (last visited April 9, 2025). That is incongruous with the Board's finding. Rather, the Board applied the benefit-of-the-doubt doctrine in order to reach the conclusion of entitlement to a TDIU, which is applied when the competing evidence is in "approximate balance" or "nearly equal." 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781. Furthermore, while the Board found the September 2023 expert opinion to be persuasive with regard to entitlement to a TDIU rating, it did not find the opinion persuasive, very or otherwise, as to the effective date. The December 2023 Board decision directly addressed the Veteran's contention and the expert opinion of a January 2018 effective date, and provided the following reasons and bases for rejection of this assertion: The vocational expert opined in her August 2023 assessment that the Veteran was limited to marginal and unmaintained employment after January 2018. In September 2023, the Veteran's representative submitted lengthy argument that the Board should find the Veteran entitled to TDIU effective January 2018, or at least from March 2018. He emphasized that while the Court has not adopted the SSA rules, attention must be given to factors listed in the SSA's disability regulations where raised by the evidence of the case [A]n Administrative Law Judge for the SSA determined in a September 2021 decision that the Veteran was disabled pursuant to a primary diagnosis of disorders of the back, and secondary diagnosis of trauma and stressor-related disorders, i.e., PTSD. Of importance, she determined that the Veteran had not engaged in substantial gainful activity since September 23, 2020. This finding of the onset date was specifically discussed in her decision. In August 2021, the Veteran and an attorney-representative attended a telephonic SSA hearing, and both stated full understanding of the effects of the decision. "Through and with the advice and consent of his attorney-representative at the hearing, the claimant knowingly and voluntarily amended his alleged onset date of disability (AOD) to September 23, 2020." See September 2021 SSA Decision. The Board finds that the award for TDIU is warranted from September 23, 2020, based upon the Veteran's own determination of that date. The Board has considered the Veteran's and representative's arguments in support of an effective date in January or March 2018. However, the Veteran testified under oath at a SSA hearing, with the advice and in the presence of legal counsel, that he has not engaged in substantial gainful activity since September 23, 2020, in contradiction to his prior alleged onset date of March 2018. Further, there is no evidence or argument of record as to why the Veteran's testimony at the SSA hearing should not be considered valid. The Board also notes that the vocational consultant's opinion does not reference the Veteran's SSA records or address the effective date established by the SSA office, despite stating that she had reviewed "the 4,359 pages of [the Veteran's] VA claims file in its entirety." Over 335 pages of that cited total comprises SSA records. Thus, while the Board can find the opinion persuasive as to entitlement to a TDIU, it can equally not find the opinion persuasive as to the effective date. The Veteran's representative submitted additional argument in November 2024, subsequent to the Court's remand of the issue. It was again misrepresented that the Board found the vocational opinion "very" persuasive, suggesting this requires the Board also find the opinion persuasive as to the effective date. In another misrepresentation, he claimed that the "record fails to show" that the Veteran testified under oath at a SSA hearing, with the advice and in presence of legal counsel, as to the onset date of the disability, in contradiction to the prior alleged onset date of March 2018. The representative then attempts to dismiss the Veteran's SSA hearing testimony by asserting that the "Veteran could have provided this testimony for any number of reasons, but it did not mean that September 23, 2020 was the date he last worked." See November 2024 Appellate Brief. The Veteran's representative contends that the "Board erred in making this inference and manufacturing an inconsistency in the record which did not exist." However, no other reasons were provided as to why the Veteran provided the September 23, 2020 onset date under oath, and the Board cannot speculate as to these suggested reasons. Further, the Board did not make a finding that September 23, 2020 was the date the Veteran last worked, but rather the date he met the criteria for a TDIU for VA purposes. The Veteran's SSA documents are of record, as specifically requested by the Veteran, and in completion of VA's duty to assist. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); August 2019 Statement in Support. The Board did not make an inference or manufacture an inconsistency when it cited from the September 2021 SSA Decision of record, that the Veteran "knowingly and voluntarily amended his alleged onset date of disability," at a hearing with legal counsel. An onset date in September 2020 is inconsistent, or in contradiction, with his earlier, alleged onset date of March 2018, made with both the SSA and VA. See Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary /contradiction, Definition 3b (a situation in which inherent factors, actions, or propositions are inconsistent or contrary to one another) (last visited April 9, 2025). Although the Veteran's own under-oath statement is sufficient to establish the effective date of September 23, 2020 for a TDIU, the Board will expand on its reasons and bases for rejection of an even earlier effective date in order to ensure substantial compliance with the August 2024 Court Order. See Stegall v. West, 11 Vet. App. 268 (1998). As part of the Veteran's May 2019 claim for SSA, he was examined by psychology specialists. An August 2020 psychological examination yielded an opinion that the Veteran was capable of maintaining pace and persistence in the performance of simple, routine, repetitive, concrete, and tangible tasks with his diagnosed depression, PTSD, and alcohol use disorder. The August 2020 examiner additionally noted that while conducting the psychological interview, he did "not appear to have provided best effort" and "clmt is considered to be of minimal consistency." See SSA Medical Treatment Records. However, during a subsequent September 23, 2020 evaluation, a different examiner determined that the symptoms had progressed to a point warranting referral for residential substance abuse treatment, and outpatient PTSD treatment. The grant of SSA disability was based on a combination of symptoms attributable to a back disorder as the primary disability, and trauma and stressor-related disorders as a secondary disability. The September 23, 2020 onset date established by the SSA corresponds to the date of the psychological evaluation that led to referral for inpatient treatment. This is the first ascertainable date of record that supports that the Veteran's mental health symptoms increased to a level, in combination with his back disorder symptoms, to prevent the Veteran from obtaining work consistent with his abilities and prior work history. It is also the date the Veteran provided under testimony as the date of disability onset for SSA disability benefits. It is reminded that for VA purposes, the Veteran is only service-connected for PTSD, and not for a back disorder. The evidence supports that September 23, 2020 is the date that can be ascertained, when his PTSD symptoms rose to a level of interference with gainful employment. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Veteran previously applied for disability with the SSA in January 2016, alleging a disability onset date of July 2, 2015. He was denied disability by an ALJ in October 2018. As part of the findings of fact, the ALJ found that the Veteran's PTSD does not cause more than minimal limitations in work activities and was "nonsevere," based on the psychological testing of record. This October 2018 finding is subsequent in time to the date the Veteran alleges in his VA claim that PTSD symptoms began to prevent substantial, gainful occupation. The July 2024 JMPR also states that the Board failed to address other evidence materially favorable to the Veteran, to include a 2023 Social Security Earnings Statement showing the Veteran's last year of reported earnings occurred in 2018, with $910.91 for that year. While reported earnings is evidence for consideration when assessing entitlement, it is not the decisive factor in a TDIU determination. For example, the 2023 Social Security Earnings Statement indicates that the Veteran only made $2,884 in the 2008; however, the subsequent five years from 2009 to 2013 demonstrates full-time employment salaries, ranging from $25,859 to $29,476. The Board has considered the Veteran's earning history, as well as other relevant factors to include, but not limited to, any limitations of memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and reliability and productivity, as set forth in Ray. 31 Vet. App. at 73. The evidence reflects that September 23, 2020, is the proper effective date for a TDIU based on the medical records and the Veteran's testimony under oath. The Veteran's representative urges in his prior September 2023 Brief that attention must be given to the factors listed in Social Security's disability regulations where raised by the evidence, and that SSA has "mandatory standards" to be used until such time as VA adopts its own rules, such as with regard to sedentary work. The Board notes, however, that in his subsequent November 2024 Brief, he contends that "SSA determinations hold no legal weight in VA's TDIU determination," and that "SSA's legal criteria for assessing disability differ in important respects from VA's framework for determining entitlement to TDIU." While SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence, specifically in consideration of the Veteran's claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Further, the Board considers the totality of the evidence in determining the effective date for a TDIU. In other words, the Board should not consider only the SSA earnings statement, but not the SSA psychological evaluations and the Veteran's sworn testimony, as probative evidence. In weighing credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has alleged multiple dates for when his PTSD symptoms contributed to an inability to secure or follow a substantially gainful occupation: July 2015 (January 2016 SSA application), March 2018 (November 2018 VA Form 21-8940 Application for a TDIU), and January 2018 (September 2023 Appellate Brief). The Board has critically assessed the Veteran's statements of onset, made under circumstances indicating bias or interest. The Board reiterates its findings. The Veteran testified under oath at a SSA hearing, with the advice and in the presence of legal counsel, that he has not engaged in substantial gainful activity since September 23, 2020, and adequate argument or reasons as to why the Veteran's testimony at the SSA hearing should not be considered valid has not been provided. Further, the September 23, 2020 date aligns with the psychological evaluations of record regarding the impact of the Veteran's PTSD symptoms on his working capacity. Given the totality of the evidence of record, a date earlier than September 23, 2020, for an award of a TDIU is not warranted. The evidence is persuasively against an earlier date, and the benefit of the doubt doctrine is not applicable, based on the Veteran's own testimony and the medical evidence to include psychological evaluations. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an earlier effective date for a TDIU is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.