Case A26040311

C.B. IWANOWSKI · 2026 · Case ID: A26040311

MIXED

Summary

The veteran, who served in the United States Marine Corps from July 1987 to August 1991, appeals the RO's decision regarding effective dates for his PTSD rating and TDIU. The Board granted an earlier effective date of May 1, 2019, for the increase in his PTSD rating to 70 percent. The Board found that the veteran's PTSD symptoms worsened, making the increase factually ascertainable within the one-year look-back period, and resolved doubt in his favor. The Board noted that while the veteran's condition improved with medication adjustments in 2019, his overall presentation and functional limitations, particularly regarding social interactions and work efficiency, warranted the higher rating from May 1, 2019. However, the Board denied an earlier effective date for TDIU prior to June 4, 2020. The Board found the veteran was gainfully employed as a machinist until June 3, 2020, and his employment was neither marginal nor protected. While the veteran claimed unemployability and submitted a private psychosocial assessment, the Board found the private opinion inadequate due to a lack of specific rationale. The VA examination in November 2020 noted significant occupational and social impairment but also found the veteran capable of managing finances and having stable housing and relationships. The Board concluded that the veteran's employment history did not support a TDIU claim prior to June 4, 2020.

Rationale

Benefit of the doubt resolved in Veteran's favor; PTSD symptoms worsened, factually ascertainable May 1, 2019; Improvement with medication did not negate earlier effective date

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

210706-170165

Full Decision Text

Citation Nr: A26040311
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210706-170165
DATE: April 29, 2026

ORDER

Entitlement to an effective date of May 1, 2019, but no earlier, for the assignment of a 70 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder is granted.

Entitlement to an effective date prior to June 4, 2020, for a total disability based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. Resolving all doubt in the Veteran's favor and based on a review of the record as a whole, as of May 1, 2019, it was factually ascertainable that the Veteran's PTSD symptomatology had worsened and he experienced deficiencies in most areas.

2. The Veteran was gainfully employed full-time throughout the appeal period until June 3, 2020; his employment was neither marginal nor protected.

CONCLUSIONS OF LAW

1. As of May 1, 2019, but no earlier, the criteria for the assignment of a 70 percent rating for PTSD with major depressive disorder were met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400.

2. The criteria for entitlement to an effective date prior to June 4, 2020, for a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(o), 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from July 1987 to August 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted an earlier effective date of April 8, 2020, for the increase in rating from 50 percent to 70 percent for the Veteran's PTSD and granted an earlier effective date of June 4, 2020, for the grant of a TDIU.

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On October 10, 2024, the Veteran withdrew the hearing request. Specifically, the letter from the Veteran's representative stated: "The veteran hereby withdraws his request for a videoconference hearing and asks that the Board proceed to decision. Please find the attached statement in support presented for consideration in lieu of this hearing."

Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ/RO) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ/RO issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

By way of procedural background, the Veteran initially submitted a claim for service connection in October 2017, which included a claim for PTSD. A rating decision was issued in April 2018, which granted service-connection and assigned a 50 percent rating, with an effective date of October 26, 2017.

In July 2018, the Veteran sought service connection for agoraphobia with panic attacks (secondary to PTSD). A rating decision was issued in September 2018 denying service connection for agoraphobia.

The Veteran timely submitted a notice of disagreement (NOD) in September 2018, seeking review of the claim for service connection for agor
filing a Supplemental Claim are included with this decision.

In July 2018, the Veteran sought service connection for agoraphobia with panic attacks (secondary to PTSD). A rating decision was issued in September 2018 denying service connection for agoraphobia.

The Veteran timely submitted a notice of disagreement (NOD) in September 2018, seeking review of the claim for service connection for agoraphobia with panic attacks. In November 2018, the Veteran opted into RAMP and sought a higher-level review which was confirmed by VA in a letter dated January 23, 2019. A higher-level review rating decision was issued in March 2019, which confirmed and continued the prior denial of service-connection for agoraphobia with panic attacks. The Veteran did not appeal this decision.

In November 2019, the Veteran submitted an intent to file followed by a VA-Form 21-526EZ, Fully Developed Claim in February 2020 seeking an increased rating for his PTSD. A rating decision was issued in April 2020, which confirmed and continued the assigned 50 percent for the Veteran's PTSD.

Prior to the April 2020 rating decision but also in April, on April 8, 2020, the Veteran filed another intent to file. On August 12, 2020, the Veteran filed an application for increased compensation based on unemployability citing "mental health" as the disability that prevented the Veteran from securing or following any substantially gainful occupation. On August 14, 2020, he submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A rating decision was issued in November 2020, which increased the rating evaluation of the Veteran's service-connected PTSD to 70 percent, with an effective date of August 12, 2020; and granted entitlement to individual unemployability, with an effective date of August 12, 2020.

The Veteran filed a supplemental claim in December 2020 seeking an earlier effective date for entitlement to individual unemployability. A rating decision was issued in December 2020, which granted an earlier effective date of April 8, 2020, for PTSD (the date of the second intent to file) based on a finding of a clear and unmistakable error (CUE) and granted an earlier effective date of June 4, 2020, for TDIU.

The Veteran timely submitted a 10182/NOD in July 2021, seeking review of the claims. As such, the claim for entitlement to an effective date prior to April 8, 2020, for the assignment of a 70 percent rating for PTSD with major depressive disorder and the claim for entitlement to an effective date prior to June 4, 2020, for a TDIU are properly before the Board for adjudication.

Earlier Effective Date Claim Laws and Analysis

Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a).

The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." See 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1).

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually-ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 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. See 38 U.S.C. § 5110 (b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). An effective date can only be assigned under this regulation if the increase in disability occurred within one-year of the claim; if the increase occurred more than one-year prior to the date of claim, an earlier effective date cannot be assigned under this section. See id; see also Gaston v. Shinseki, 605 F.3d 979 (2010).

Entitlement to an effective date prior to April 8, 2020, for the assignment of a 70 percent rating for PTSD with major depressive disorder.

The Veteran asserts that an effective date prior to April 8, 2020, is warranted for the assigment of the 70 percent rating for his service-connected PTSD with major depressive disorder. Specifically, he seeks this rating back to his date of claim for service connection received October 26, 2017. See October 2024 Statement in Support of Claim.

The Board finds that the appeal period for consideration begins November 7, 2019, the date of the intent to file, prior to the receipt of the VA 21-526EZ Fully Developed Claim seeking an increased rating for PTSD and includes the one year look back period, allowing consideration of evidence from November 7, 2018, forward. Here, the Veteran filed a claim for a TDIU based on his mental health following denial of an increased rating for PTSD in the February 2020 rating decision. The Board finds any doubt as to his intent can be resolved in the Veteran's favor to find he continuously pursued an increased rating for his PTSD from November 7, 2019. See Chisholm v. Collins, 38 Vet. App. 140 (2025) (holding that a TDIU application (VA Form 21-8940) may serve as a supplemental claim in the AMA when it is filed after VA denies increased ratings for those disabilities).

To the extent the Veteran argues that the Board should consider a period prior to this, back to his date of claim for service connection in October 2017, the Board finds that a claim for a higher rating has not been continuously pursued since that time. The September 2018 rating decision continued a 50 percent rating for PTSD. In the September 2018 NOD, the Veteran stated his specific issue of disagreement was that his agoraphobia was not found to be service connected. It was that issue that was opted into AMA from the legacy appeal system as noted in the January 2019 notification letter and that issue which was decided in the March 2019 rating decision. Given this, the September 2018 rating decision became final as to the rating for PTSD, and more than a year passed prior to the filing of the November 7, 2019, intent to file and 21-526EZ seeking an increased rating for PTSD. Thus, continuous pursuit was broken.

Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id.

A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies
a year passed prior to the filing of the November 7, 2019, intent to file and 21-526EZ seeking an increased rating for PTSD. Thus, continuous pursuit was broken.

A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional ritualswhich interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.

Turning to the evidence, a review of the Veteran's post-service treatment records show the Veteran received primary care treatment at Bay Area Family Care but did not receive mental health treatment. Records from December 2019, March 2020 and June 2020 note the Veteran had a past medical history of agoraphobia with panic disorder and social phobia but reported no acute distress.

During a mental health initial assessment in August 2018, prior to the one-year look back period, the Veteran reported increased situational life stress. He reported he was currently employed at a local machine shop and denied any behavioral complication within the occupational context. The Veteran reported for his work history, he "jumps around a lot... I get tired of one place and want to move onto another.... Hard for me to deal with authority at times." The Veteran reported he was currently engaged and described a supportive and loving relationship with his fiancée. The examiner noted that the "Veteran is gainfully employed and maintained stable housing. Veteran describes a loving and supportive relationship with his fiancée of 5 years." During a mental health consult also in August 2018, the Veteran reported: "anxiety issues, just curious of something available." The Veteran reported: "he started working in a machine shop for the past 6 months and says it is going pretty well except there are occasional loud noises that startle him. He tends to do pretty well at home, but when he gets out he likes to avoid crowds and people. He tells me sometimes he feels panicky in those situations, but does not describe full-blown panic attacks, but rather feeling tense and on edge. He does not endorse depressed mood more days than not." See Saginaw VAMC.

On May 1, 2019, the psychiatry provider noted that the Veteran's presentation was "far different today than it was last time. He has fixed facial expression, psychomotor retardation, adequate grooming, dressed appropriately for the season. Affect is flat and mood is depressed. Speech is slow, monotone mechanical quality making for laborious interview." The Veteran reported that he felt guilty for verbally attacking a boss, about the only person he really liked at work. The Veteran reported a depressed mood more days and not, effort to get going in the morning, multiple nighttime awakenings and not feeling rested. He reported anhedonia and stated he dragged himself out of bed just in time to go to second shift work. In the past, the Veteran enjoyed going out shopping with his significant other, going out for meal, but now when they go out he kept it very short, maybe an hour, and then wanted to go home, feeling more isolated. He had depressed ruminations and continued to take a combination of medications to treat his symptoms. The practitioner specifically noted when considering the plan for his treatment that his presentation was different than last time, and additional treatment was recommended. See Saginaw VAMC.

In July 2019, it was noted that his medication was increased on June 12. The Veteran had spontaneous speech, longer than "a couple appointments ago" with better modulation. The Veteran had less somatic preoccupation. The Veteran reported that he was working a lot, trying to do his basement to his physical toleration, did not get out much, and did not mention anything specifically about intrusive recollections. In September 2019, the Veteran was dressed in his work uniform, smiled and laughed for the first time the provider had seen, although his affect remained flat and his mood was constricted. The Veteran's
that his presentation was different than last time, and additional treatment was recommended. See Saginaw VAMC.

In July 2019, it was noted that his medication was increased on June 12. The Veteran had spontaneous speech, longer than "a couple appointments ago" with better modulation. The Veteran had less somatic preoccupation. The Veteran reported that he was working a lot, trying to do his basement to his physical toleration, did not get out much, and did not mention anything specifically about intrusive recollections. In September 2019, the Veteran was dressed in his work uniform, smiled and laughed for the first time the provider had seen, although his affect remained flat and his mood was constricted. The Veteran's speech was spontaneous but monotone. The Veteran reported he was remodeling the basement and sleeping six to seven hours a night, but up frequently to urinate, but also to do perimeter patrol.

In October 2019, the Veteran reported he was still employed, was dressed in his work uniform and showed a smile for the second appointment. The Veteran's speech was spontaneously longer. The Veteran reported he enjoyed remodeling the house and was still working on the basement. The Veteran reported improved sleep. The provider noted: "Most notably he has been able to get out of the house when his girlfriend goes shopping, tolerates an entire afternoon, but still avoids crowds and walks long distances/detours in order to get to a specific spotting the aisle so he can avoid people. This is enhanced the relationship." See Saginaw VAMC.

In January 2020, the Veteran reported he had left shoulder surgery. His mood was depressed and his sleep was more disrupted. The Veteran reported that a new stressor was that his girlfriend's 20-year-old daughter moved into the house about a month prior. The Veteran reported he was overall stressed out by being off of work, had surgery and had suboptimal benefit regarding pain that he continued to require opioids. The Veteran reported decreased motivation, struggled and has to push himself to paint the house, anhedonia, had become increasingly isolated. The provider noted the Veteran's loss of coping skills because he could not work, although he expected to return soon. The Veteran reported that the girlfriend's 20-year-old daughter move in the house resulted in a loss of privacy. The provider advised to see how quickly the Veteran could go back to work for renewed purpose, daily structure. See Saginaw VAMC.

A February 2020 telephone message indicated that the Veteran returned to work. Later in February 2020, the Veteran reported he was employed and reported "Conflict in [the] house with his girlfriends 20-year-old daughter with her dog, and she is about to deliver. Baby daddy is not in the picture." See Saginaw VAMC.

The Veteran was afforded a March 2020 VA review PTSD examination. The VA examiner noted a diagnosis of PTSD and no more than one mental disorder diagnosed. The VA examiner noted the Veteran's 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. The Veteran reported he doesn't talk to his family, has no friends, doesn't get along with neighbors, co-workers, or his bosses. The Veteran reported he worked second shift as a machinist. He has sleep medications, but he did not take them due to feeling that he "is missing out on something." The VA examiner noted the Veteran's symptom was sleep impairment. The VA examiner also noted that the Veteran was friendly, expressive, responsive, cooperative, open, honest and fully answered all questions; the Veteran was oriented to time and place; appearance and hygiene was within normal limits; behavior was appropriate; delusions or hallucinations were absent; no disorientation; no obsessive rituals were obtained, observed nor confirmed; no gross impairment in thought processes nor communication were observed; speech was logical and relevant; no danger to self nor others, able to do all ADL's without assistance, memory intact, no evidence of memory dysfunction. Veteran describing increase in social stressors. The VA examiner noted that the Veteran was capable of managing his financial affairs.

As mentioned, effective April 8, 2020, the Veteran's rating was increased to 70 percent for PTSD.

In the evidence-window following his hearing withdraw, in an October 2024 statement, the Veteran contended that despite what the VA examinations showed, in reality, he struggled every day to get through work and social situations due to anxiety and difficulty with authority. He stated that in August 2018, he was dealing with constant sleep issues, was easily startled, avoided crowds and people as much as he could. He stated his alcohol use became more of a problem, and he knew things "were getting worse." He indicated he was placed on medication in 201
that the Veteran was capable of managing his financial affairs.

As mentioned, effective April 8, 2020, the Veteran's rating was increased to 70 percent for PTSD.

In the evidence-window following his hearing withdraw, in an October 2024 statement, the Veteran contended that despite what the VA examinations showed, in reality, he struggled every day to get through work and social situations due to anxiety and difficulty with authority. He stated that in August 2018, he was dealing with constant sleep issues, was easily startled, avoided crowds and people as much as he could. He stated his alcohol use became more of a problem, and he knew things "were getting worse." He indicated he was placed on medication in 2019, and the dosages were increased in June 2019. By February 2020, he stated he was experiencing daily panic attacks and flashbacks of combat.

Notably, in an August 2020 VA Form 21-4192, the Veteran's prior employer stated the Veteran was employed from November 2017 to June 3, 2020, as a machinist. Time lost due to disability was noted as "11/16/19 thru 1/17/20" demonstrating that through 2019, and around the time he filed his intent to file prior to the February 2020 claim for an increased rating, the Veteran's conditioned had worsened enough for him to begin missing work.

Considering the evidence as a whole, the Board will resolve any and all doubt in the Veteran's favor to find that it was factually ascertainable that his PTSD worsened in May 2019, within the 1-year look back period. Specifically, on May 1, 2019, his treatment provider noted that his presentation was "far different" from his visit in August 2018 and an increase in medication was necessary just over a month later in June 2019.

In 2018, the Veteran continued to work and had a stable relationship. In 2019, an objective onlooker might note improvement; however, it is clear that any improvement was due to increases in the Veteran's psychiatric medications. Given the Veteran's statements, the Board will resolve doubt to find that the Veteran was experiencing difficulties and deficiences in most areas beginning in May 2019. These were helped by increased medication use, although his condition continued to deteriorate prior to beginning to miss work in November 2019 and stopping work all together in June 2020.

Prior to May 1, 2019, when the treatment provider noted a noticeable difference in the Veteran, the Board finds that the Veteran's disability picture most closely approximated a 50 percent rating given that the Veteran's was generally functioning satisfactorily at work and at home, as reflected in the treatment records and examination reports. As such, the grant of a May 1, 2019, effective date for the increase in rating to 70 percent for PTSD is based on a careful consideration of arguments made by the Veteran in support of his claim and application of the benefit of the doubt doctrine to resolve any doubt as to the severity of his condition in his favor.

Based on the above, an effective date of May 1, 2019, but no earlier, for the increase in rating for PTSD to 70 percent is granted.

Entitlement to an effective date prior to June 4, 2020, for a total disability based on individual unemployability (TDIU).

The Veteran asserts that an effective date prior to June 4, 2020, is warranted for TDIU.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure and 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 is met when the Veteran is unemployed or marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment
marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

The non-economic component of the phrase "unable to secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type 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). Ray, 31 Vet. App. at 73.

The Board is not permitted to consider advancing age or a nonservice-connected disability when determining entitlement to a TDIU. 38 C.F.R. §§ 3.341(a), 4.16, 4.19.

A TDIU 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

As a claim seeking entitlement to a TDIU is a type of increased rating claim, the laws governing the assignment of effective dates for these types of claims apply. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110.

The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C. § 5110 (g).

Assigning the appropriate effective date for TDIU involves determining (1) when the Veteran's claim for TDIU was received, and if possible (2) when it became factually ascertainable that the Veteran could not secure and follow gainful employment, if the application is received within one year from such date. See 38 C.F.R. §§ 3.155, 3.340, 3.400(o)(2), 4.16(a).

The Veteran filed a VA21-8940 application for a TDIU on August 14, 2020. His application for TDIU shows that he considered his "mental health" disorder to render him unemployable. He reported that he became too disabled to work on March 6, 2020.

In an August 2020 VA Form 21-4192, the Veteran's prior employer stated the Veteran was employed from November 2017 to June 3, 2020, as a machinist. Time lost due to disability was noted as "11/16/19 thru 1/17/20" and concessions made were "none." The Veteran worked 8 hours a day, 40 hours per week and reason for the Veteran's termination of
for a TDIU on August 14, 2020. His application for TDIU shows that he considered his "mental health" disorder to render him unemployable. He reported that he became too disabled to work on March 6, 2020.

In a September 2020 statement regarding TDIU, the Veteran stated, "Ive tried my best since leaving the Marine Corps to hold gainful & substantial employment, to no avail. I find myself simply unable to get along with others and always have issues with my supervisors. The anxiety I suffer by working in these stressful environments is overwhelming and causes me to leave work early or simply not show up." It's impossible for me to keep gainful employment. I don't intend it to work that way, I just find myself in the exact same situation at every job I try. Ultimately, I quit or am forced to resign in lieu of being fired or, im simply fired."

In October 2020, the Veteran provided a September 2020 private psychosocial assessment and employability evaluation. The private examiner reported that the assessment was done based on an interview, PTSD self-assessment, Traumatic Stress inventory, Mississippi Combat Scale and PTSD Stressor Statement. The private examiner also stated that "in preparing this report, I reviewed the following: Various dates: Complete copy of [the Veteran's] Saginaw VA medical records (225 pages)." The private examiner also included a list of various medical treatment dates and VA examinations.

The September 2020 private examiner opined: "Based on his education, training, past work experience and current level of symptoms related to his PTSD, it is my professional opinion that [the Veteran] is not a viable rehabilitation candidate, nor is he capable of sustaining substantial, gainful work activity. He is unemployable. His symptoms have remained static since is claimed increase in mental health symptoms of July 2018. He has had a very poor post-military personal, occupational and social adjustment." "My opinions are based not only on my experience as a licensed psychologist, but as a nationally certified rehabilitation counselor."

Although the opinion from the September 2020 private examiner represents competent medical evidence, the Board finds that the opinion is inadequate because the private examiner did not provide any rationale to support the opinion that the Veteran was "unemployable." Rather the private examiner relied solely on her "experience as a licensed psychologist" and as "a nationally certified rehabilitation counselor." The private examiner provided no medical studies or literature in support of her findings or anything other an overly broad conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). As such, the Board assigns little probative weight to the September 2020 private psychosocial assessment and employability evaluation.

The Veteran was afforded a November 2020 VA review PTSD examination. The VA examiner noted a diagnosis of PTSD and major depressive disorder. The VA examiner noted the Veteran's occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he chose to not return to work after COVID furlough. The Veteran stated that he had poor interactions with others ("I go from 0 to pissed off instantly") and had a "shoving match" with a coworker in March of 2020 ("I don't know how I didn't get fired after that").

As outlined above, the Veteran continuously reported that he was employed, including at times appearing for his treatment in his work uniform. Therefore, the Board does not find that the record reasonably raised unemployment. Rather, the Veteran did not assert, nor does the evidence show that the Veteran sought a TDIU until August 2020. Furthermore, the Veteran's former employer stated that the Veteran was gainfully employed until June 3, 2020.

The Board finds that the Veteran was sent home at the beginning of the 2020 COVID-19 pandemic and the Veteran did not return to work when his workplace re-opened. It appears to the Board that the Veteran was offered his position when he was ready to return. While the Veteran reported he was not employed as of March 6, 2020, the Board notes this was the beginning of the COVID-19 pandemic. Likewise, the Veteran's employer noted that the Veteran was considered employed until June 3, 2020, which was dated as his final day of employment with the company. The Board notes that in a September 2020 treatment record, the Veteran reported that he asked "if he got to feeling better, if could come back [to work] and he said they responded in the affirmative." The Board finds this accounts for the Veteran's report of his last day of work in March 2020 and his employer reporting his last day of employment in June 2020, due to him having resigned.

Based on the evidence, the Veteran was gainfully employed until June 3, 2020. See August 2020 VA Form 21-4192. Thus, an effective date of June 4, 2020, for the award of the Veteran's TDIU benefits is the earliest date that can be assigned given that TDIU benefits require that the Veteran is, in fact, not working, or is working in an employment environment that can be considered protected or marginal, not the case here.

To the extent that the Veteran asserts that a TDIU should be awarded from an even earlier date, his argument fails as he was employed until June 3, 2020, and there is no evidence to suggest that the job he held as a machinist working the second shift full time was either marginal or protected. The record shows gainful employment at the machine shop from November 2017, prior to the beginning of the appeal period, until June 3, 2020. See August 2020 VA 21-4192. Given this, there is no doubt to be resolved, and an effective date prior to June 4, 2020, must be denied.

C.B. Iwanowski

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Melnyk, H.

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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