Citation Nr: A25035267 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 211011-190066 DATE: April 16, 2025 ORDER An effective date earlier than October 9, 2019, for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to October 9, 2019, the evidence of record does not demonstrate that the Veteran's PTSD was of such nature and severity to preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date prior to October 9, 2019, for TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from June 2007 to April 2011. By way of procedural background, the issue of entitlement to TDIU was previously before the Board in June 2020 when the Board denied entitlement to TDIU. The Veteran subsequently filed a VA Form 20-0995, Supplemental Claim, in response to the Board's decision and submitted new evidence along with the supplemental claim. Thereafter, the agency of original jurisdiction (AOJ) issued a November 2020 rating decision, granting entitlement to TDIU and assigning an effective date of October 9, 2019. In December 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the effective date assigned in the November 2020 rating decision for his award of TDIU. In March 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2020 rating decision. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2020 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38?C.F.R. §§?20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an effective date earlier than October 9, 2019, for TDIU The Veteran is currently assigned an effective date of October 9, 2019, for his award of TDIU. He and his representative contend that that he is entitled to an earlier effective date because his service-connected PTSD has prevented him from securing substantially gainful employment since November 2016. See December 2021 Appellate Brief. Unless specifically provided otherwise, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(b); 38 C.F.R. § 3.400(o). As a TDIU claim is considered part and parcel to an underlying increased rating claim, the effective date for the assignment of a TDIU may be as early as the effective date applicable to that increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A "claim" is defined in the VA regulations as "a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws prescribed by [VA] submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p). Pursuant to?38 C.F.R. § 3.155(d), a complete claim is required for all types of claims and will generally be considered filed as of the date it was received by VA for an evaluation of award of benefits. If VA receives a complete claim within 1 year of the filing of an intent to file a claim that meets the requirements of?38 C.F.R. § 3.155(b), it will be considered filed as of the date of receipt of the intent to file a claim. 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, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015, amendment, VA accepted both formal and informal claims. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when income does not exceed the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). By way of background, in the November 2020 rating decision, the AOJ granted entitlement to a TDIU, effective October 9, 2019, based on the Veteran's October 9, 2019, claim for entitlement to a TDIU. See VA Form 21-8940, Veterans Application for Increased compensation Based on Unemployability. The record indicates, however, that the Veteran's claim for an increased initial rating for PTSD was pending at the time the Veteran submitted his claim for a TDIU. As such, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Veteran's claim for a TDIU must be considered in conjunction with his claim for an increased initial rating for PTSD. The Veteran was granted service connection for PTSD and awarded a 70 percent disability rating in a November 2016 rating decision, which was effective June 16, 2016. As the Veteran continuously pursued his claim for an increased initial rating for PTSD, the Board has determined that the date of receipt of the claim on appeal is June 16, 2016. Having determined the TDIU date of claim is June 16, 2016, the Board must determine on what date entitlement arose for the assignment of a TDIU. During the relevant period on appeal, the Board finds that the threshold minimum percentage rating requirements for the assignment of a TDIU were met. Specifically, from June 16, 2016, to October 9, 2019, the Veteran's sole service-connected disability was PTSD, rated 70 percent. As the Veteran had a service-connected disability ratable at 60 percent or more, he met the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a). The Veteran received a bachelor's degree in Information Technology in May 2015. He worked at Coca Cola Distribution and Food Lion while earning his degree. See October 2019 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. After graduating with his bachelor's degree, he worked as an IT systems analyst for Lowe's Corporate Headquarters from August 2016 until November 2016 when he became unemployed because his employer was downsizing. Prior to working for Lowe's, the Veteran worked in IT for Union County from January 2016 to August 2016 and for TJ Maxx Corporate from November 2015 to January 2016. Id. The Veteran reports he has been unemployed since November 2016 despite applying to numerous positions. See May 2017 Comprehensive Mental Status Evaluation. Turning to the relevant evidence, the Veteran's wife provided a lay statement in October 2016. She reported the Veteran experienced anxiety to the point of having difficulty driving or riding as a passenger in a vehicle. Additionally, the Veteran was reluctant to leave his home due to his PTSD symptoms. The Veteran was provided a PTSD VA examination with a medical opinion in November 2016. The VA examiner opined that the Veteran's PTSD caused "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation." At the time of the examination, the Veteran was employed by Lowe's Corporate Headquarters. The Veteran reported that he "[could] be pushed to become angry at work." The examiner noted the Veteran's PTSD symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. The examiner did not note any difficulty in communication or cognition that would impair the use of the Veteran's information technology skills. Throughout the examination the Veteran was described as cooperative, with clear speech and there were no indications of thought processes or thought content problems. Social Security Administration (SSA) records show that in May 2017, the Veteran completed a Comprehensive Mental Status Evaluation administered by SSA. The examiner opined that the Veteran's current condition would result in difficulty with work-related activities. Specifically, the examiner referenced the Veteran's anxiety affecting his ability to leave the house and his problems dealing with stress associated with day-to-day work. The Veteran underwent another medical evaluation in May 2017 administered by the SSA. The examiner provided that the Veteran would be capable of performing work in a low stress role with limited interaction with coworkers and supervisors. Additionally, it was noted the Veteran was moderately limited in his ability to respond to change in a work-like setting. Any determination made by SSA as to the Veteran's eligibility for SSA disability is not binding on the Board in reaching its determination of whether a TDIU is warranted. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). However, it is worth noting that in May 2017, SSA found that the Veteran was not disabled. In a May 2019 medication follow-up appointment, the Veteran reported he had lost his first job due to his hypervigilance and he was laid off from his second and third jobs as the companies were downsizing. Additionally, the Veteran reported that he had "applied for 100 positions and [had] not heard anything, been called back 3 times but none offered." VA treatment records show that the Veteran experienced increased panic attacks in 2019. The Veteran reported in a February 2019 Primary Care Mental Health Integration Intake that he had experienced a panic attack that took him to the emergency room. Additionally, in a September 2019 VA treatment record, the Veteran presented at a mental health clinic requesting medication for increased anxiety and panic attacks. The Veteran provided a private opinion from a Vocation Rehabilitation Consultant in October 2020. The Veteran reported experiencing panic attacks while at work that he tried to hide from his supervisors. The Veteran also reported that he perceived himself as "a good worker and did a good job at his work but was still let go from his jobs." Additionally, the Veteran noted that his wife would occasionally drive him to work because driving caused anxiety. The Veteran stated he was hospitalized five times in 2019 due to panic attacks and experienced anxiety attacks one to two times per week. Based on the evidence in the record and an interview with the Veteran, the consultant opined that the Veteran had been unable to secure or perform any type of substantially gainful employment since at least November 2016 due to his service-connected psychiatric conditions. After a thorough review of the record, the Board concludes that the functional limitations imposed by the Veteran's service-connected PTSD did not render him unable to secure or follow substantially gainful employment prior to October 9, 2019. In that regard, the evidence establishes that, although the Veteran's PTSD was found to limit his ability to function in a work like environment, the evidence did not establish that the PTSD symptoms were so significant as to render him unable to secure or follow substantially gainful employment. Notably, the Veteran consistently reported throughout the record that the reason for his unemployment in November 2016 was due to being laid off. The Board also notes that, while the Veteran has reported he was let go of a previous job due to his hypervigilance and that he had tried to secure employment since being let go, the sole fact that he was unemployed or had difficulty obtaining employment during this time period is not enough to establish entitlement to a TDIU. Rather, the question for consideration is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose, 4 Vet. App. at 361. The Board has considered the October 2020 private consultant opinion. The consultant's opinion is based on an interview with the Veteran and a review of the Veteran's claims file; however, the consultant does not provide a rationale as to how the Veteran's PTSD affected his ability to secure or maintain substantially gainful employment within his educational background and skillset since being let go in November 2016. Additionally, the statements reported by the Veteran suggest his PTSD symptoms began to worsen in 2019, when he began to experience increased anxiety and panic attacks, and when the formal claim for TDIU was filed. The Board acknowledges the arguments made by the Veteran's representative in the October 2019 Third Party Correspondence and December 2021 Appellate Brief. Specifically, that the Veteran has not been employed since November 2016. As stated above, this alone is not sufficient for awarding TDIU prior to October 9, 2019. Indeed, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The Board instead highlights that during the November 2016 VA examination, the Veteran's PTSD was found to cause only occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. Evaluations conducted by SSA in May 2017 similarly found that the while the Veteran would have difficulties with work-related activities, he would still be capable to performing work in a low stress role with limited interaction with coworkers and supervisors. He was also only moderately limited in his ability to respond to change in a work-like setting. Based on the foregoing, the Board finds that the weight of the evidence is against the claim for an effective date prior to October 9, 2019, for a TDIU. The Veteran appears to have been working up until November 2016 and did seek employment beyond that date. The record further reflects that any impairment caused by his PTSD prior to October 9, 2019, was adequately compensated by the assigned schedular rating. Loss of industrial capacity is the principal factor in assigning disability ratings. See?38 C.F.R. § 3.321(a), 4.1. Indeed,?38 C.F.R. §?4.1?specifically states: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown,?4?Vet. App.?361, 363?(1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In conclusion, the weight of the evidence establishes that while the Veteran did have limitations as a result of his service-connected PTSD, and the Veteran ceased working in November 2016, the service-connected PTSD alone did not prevent him from securing or following a substantial gainful occupation. As noted, the record also shows that the Veteran continued to seek out employment after being let go in November 2016. While the Board does not wish to minimize the nature and extent of the Veteran's limitation due to his service-connected PTSD, the weight of the evidence does not support a finding that his service-connected PTSD was sufficient to produce unemployability prior to October 9, 2019. As indicated, generally, the effective date to be assigned is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In this case, the date of claim has been identified as June 16, 2016, and as explained above, the record reflects that he was capable of meeting the mental and physical demands of a substantial gainful employment prior to the October 9, 2019, the effective date of his award of TDIU. Thus, entitlement to TDIU prior to October 9, 2019, is?denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of the-doubt doctrine; however, as the evidence persuasively weighs against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, D. L. 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.