Case A25111412

WENDY DAKNIS · 2025 · Case ID: A25111412

MIXED

Summary

The Veteran, an Army veteran who served from March 1967 to September 1975, appeals the denial of an earlier effective date for his Total Disability based on Individual Unemployability (TDIU) rating. The Veteran claimed entitlement to TDIU as of October 1, 2020, due to his service-connected PTSD, hypertension, heart disease, hearing loss, sleep apnea, IBS, and lumbosacral strain, stating he became too disabled to work as an attorney on that date. The Board reviewed evidence including VA examinations from August 2020, November 2023, April 2024, and October 2020. Key evidence included opinions from VA examiners stating that the Veteran's heart disease, hypertension, hearing loss, and PTSD symptoms impacted his ability to work. Specifically, examiners noted dizziness and frequent falls due to heart disease and hypertension, difficulty hearing, and PTSD symptoms like depressed mood, anxiety, panic attacks, and chronic sleep impairment. The Board found that these symptoms, particularly the dizziness and falls from heart disease and hypertension, along with hearing loss and PTSD-related impairments, prevented the Veteran from securing or following a substantially gainful occupation from October 1, 2020. The Board granted an earlier effective date of October 1, 2020, for the TDIU rating, aligning with the Veteran's reported date of disability. However, the Board denied an effective date prior to October 1, 2020, finding the evidence against the claim that he was unable to work earlier, noting his substantial income as an attorney until that date.

Rationale

Service-connected heart disease and hypertension led to dizziness and frequent falls, posing a safety risk and impacting work.; Hearing loss caused difficulty communicating, challenging employment.; PTSD symptoms, including depressed mood, anxiety, panic attacks, and chronic sleep impairment, impacted ability to work.; Veteran reported stopping work on October 1, 2020, due to these disabilities.

Service Branch

ARMY

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

250423-540741

Full Decision Text

Citation Nr: A25111412
Decision Date: 12/31/25 Archive Date: 12/31/25

DOCKET NO. 250423-540741
DATE: December 31, 2025

ORDER

Entitlement to an earlier effective date of October 1, 2020, for the award of total disability based on individual unemployability (TDIU) is granted.

FINDING OF FACT

From October 1, 2020, the Veteran's service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment.

CONCLUSION OF LAW

The criteria for an earlier effective date of October 1, 2020, for a TDIU rating are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.1, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from March 1967 to September 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2025 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

The March 2025 rating decision is a higher-level review decision. Therefore, the Board may only consider the evidence of record at the time of the October 2024 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.

Finally, the Board acknowledges that 38 C.F.R. § 20.202(c)(2) "creates a right for the claimant to modify his or her [notice of disagreement (NOD)] by submitting a new one and gives the claimant the later of a year from the AOJ decision or 60 days from when the Board receives the original NOD to do so." Williams v. McDonough, 37 Vet. App. 305, 309 (2024). The Board concludes that the Veteran has implicitly waived his right to change Board dockets under Williams. The present appeal has been advanced on the docket (AOD) based on the Veteran's age. The Board interprets this AOD status as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of his right to change Board dockets under Williams.

Entitlement to an effective date prior to February 12, 2024, for a TDIU rating.

The Veteran contends that he is entitled to an effective date prior to February 12, 2024. Specifically, the Veteran's representative argues that he should be entitled to a TDIU rating as early as October 1, 2020. See April 2025 VA Form 10182. The Board notes that the Veteran did not explicitly apply for a TDIU rating until the February 12, 2024 TDIU application, which is the effective date that was granted by the AOJ. See October 2024 and March 2025 rating decisions. However, the Board finds that the Veteran had an inferred claim for TDIU prior to that date. Specifically, the Veteran applied for an increased rating for service-connected posttraumatic stress disorder with major depressive disorder and alcohol use disorder (PTSD) on February 27, 2020. Then, in the August 2020 VA examination, the examiner noted that the Veteran had symptoms of depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment, which the Board finds may impact the Veteran's ability to work. As such, the Board finds that the Veteran had an inferred claim for a T
the effective date that was granted by the AOJ. See October 2024 and March 2025 rating decisions. However, the Board finds that the Veteran had an inferred claim for TDIU prior to that date. Specifically, the Veteran applied for an increased rating for service-connected posttraumatic stress disorder with major depressive disorder and alcohol use disorder (PTSD) on February 27, 2020. Then, in the August 2020 VA examination, the examiner noted that the Veteran had symptoms of depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment, which the Board finds may impact the Veteran's ability to work. As such, the Board finds that the Veteran had an inferred claim for a TDIU rating that was part of the increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447. Therefore, given that a TDIU claim is essentially an increased rating claim, the Board must consider the one-year look-back period. See 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Accordingly, the review period is from February 27, 2019, and the Board will consider whether the Veteran is entitled to a TDIU rating from February 27, 2019 or at any point prior to the current February 12, 2024 effective date.

Legal Criteria

TDIU earlier effective date claims are not regulated by their own specific subsection of 38 C.F.R. § 3.400. Rather, such TDIU claims are equivalent to increased rating earlier effective date claims, and thus are governed under 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000).

The effective date for an award of an increased rating (including 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. If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to the receipt of the claim, the increase will be effective on the date of the claim. In addition, if the increase occurred after the date of claim, the effective date will be 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)(1),(2).

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361,
with coworkers, and demonstrate reliability and productivity). Id.

Factual Background

The Veteran submitted a TDIU application in February 2024. The Veteran explained that his service-connected PTSD, hypertension, heart disease, hearing loss, sleep apnea, irritable bowel syndrome (IBS), and lumbosacral strain prevented him from securing or following any substantially gainful occupation. Additionally, the Veteran explained that he worked as an attorney from May 1987 to October 2020, and that he became too disabled to work on October 1, 2020. The Veteran further reported that other than college, he did not have any other education or training.

First, the November 2023 VA examiner opined that the Veteran's service-connected hypertension impacted his ability to work. Specifically, the examiner opined that the Veteran experienced dizziness with position changes. Additionally, in the April 2024 VA examination, the Veteran reported that he was unable to continue working as a trial lawyer because he would fall every time he stood up.

Second, the July 2020 VA examiner opined that the Veteran's service-connected heart disease did not impact his ability to work. However, the May 2024 VA examiner opined that the Veteran's heart disease impacted his ability to work. During the examination, the Veteran described daily dizziness with near syncope. The examiner further reported that the Veteran had multiple falls in the court room while working as a lawyer, due to his heart disease. The frequent falls required frequent recesses and rescheduled trial dates. The examiner explained that these falls due to heart disease were a major reason for the Veteran's retirement. The Board notes that the Veteran retired on October 1, 2020. See February 2024 TDIU application.

Third, the Veteran was afforded the August 2020 VA examination for his PTSD. The examiner opined that the Veteran's PTSD caused occupational and social impairment with reduced reliability. Additionally, the examiner reported that the Veteran was disabled from his law practice due to IBS, chronic fatigue, dizziness, and other factors. Furthermore, the examiner stated that the Veteran's PTSD symptoms were depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment.

Finally, the Veteran was afforded the October 2020 VA examination for his service-connected hearing loss. The examiner opined that the Veteran's hearing loss impacted his ability to work. Specifically, the Veteran had difficulty hearing other people.

Analysis

For the reasons that follow, the Board finds that an earlier effective date of October 1, 2020, for a TDIU rating is warranted.

The Veteran's ability to secure and follow a substantially gainful occupation was impacted from October 1, 2020, by the physical effects of his service-connected heart disease, hypertension, and hearing loss. First, the November 2023 and May 2024 examiners explained that the Veteran's heart disease and hypertension led to dizziness and frequent falls. The Board finds that these heart disease and hypertension symptoms would cause a safety risk to the Veteran in any occupation and would likely lead to frequent breaks and absences from work. This would be especially impactful for the Veteran because of his work history as a trial attorney, which involved frequent changes of position from sitting to standing. In fact, the May 2024 VA examiner specifically stated that the Veteran's dizziness and falls from heart disease caused frequent recesses and rescheduled trial dates. The examiner also explained that the Veteran's dizziness and falls due to heart disease were a major reason for his retirement. Additionally, the Board notes that the Veteran stopped working on October 1, 2020. See February 2024 TDIU application.

The Veteran's ability to secure and follow a substantially gainful occupation was also impacted from October 1, 2020, by the physical effects of his service-connected hearing loss. The October 2020 VA examiner opined that the Veteran's hearing loss impacted his ability to work because of difficulty hearing others. The Veteran's difficulty communicating with others would make working in any occupation challenging, especially in careers that would be like his work history as an attorney, in which
trial dates. The examiner also explained that the Veteran's dizziness and falls due to heart disease were a major reason for his retirement. Additionally, the Board notes that the Veteran stopped working on October 1, 2020. See February 2024 TDIU application.

The Veteran's ability to secure and follow a substantially gainful occupation is further impacted from October 1, 2020, by the mental effects of his service-connected PTSD. The August 2020 VA examiner reported PTSD symptoms of depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment, which the Board finds would impact the Veteran's ability to work. The Veteran's chronic sleep impairment in particular would impact his ability to work in any job. In fact, the examiner reported that the Veteran was disabled from his law practice in part due to chronic fatigue.

Accordingly, the Board finds that October 1, 2020, is the most appropriate effective date for the Veteran's TDIU rating. The Veteran reported that he stopped working due to his service-connected disabilities on October 1, 2020, and the record is clear that the Veteran's service-connected heart disease, hypertension, hearing loss, and PTSD prevented him from securing or following a substantially gainful occupation as of that date. As such, entitlement to an effective date of October 1, 2020, for a TDIU rating is granted.

However, the Board finds that an effective date prior to October 1, 2020 is not warranted. The Veteran explicitly stated in the February 2024 TDIU application that he became too disabled to work on October 1, 2020. The Board acknowledges that the Veteran owned a law firm at the time that he stopped working, which could be interpreted as a protected environment. However, the Veteran stated in the TDIU application that he earned $400,000 from his law firm in 2016, and the evidence is persuasively against a finding that the Veteran would not have been able to perform similar work and earn more than marginal income if he were working for someone else.

W. Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Brodbeck

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.

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