BVA Case 21-2416: Psychiatric

In January 2020,the Board denied the claim for an effective date earlier than December 13, 2005,for service connection for bronchial asthma.

The director observed that the Board had provided the appellant the benefit of the doubt when assigning a 60 percent [rating] from December 23,2006,even though he did not start prednisone course until months later.

In the December 2020 decision we consider here on appeal, the Board noted that before March 5,2011,the appellant was service connected for bronchial asthma,rated as 30%disabling from December 2005 to December 2006, 60%disabling from December 2006 to May 2008,and then again as 30%disabling,from June 2008 through March 2011.

3 The Board noted that from May 2005,the date the appellant reportedly became too disabled to work,to December 2006,and from June 2008 through March 2011, the appellant's combined rating was no more than 40%.

The Board noted the October 2020 memorandum in response to the referral,noting that the Director of the Compensation Service found insufficient evidence that the appellant's service-connected disabilities prevented substantially gainful employment prior to March 5,2011,and determined that a TDIU should not be granted on an extra-schedular basis.

The Board determined that the appellant's service-connected disabilities did not meet the scheduler rating requirement for a TDIU from May 5,2005 to December 22,2006,and from June 1,2008 to March 4, 2011,but they did meet these schedular rating requirements from December 23,2006,to May 31,2008,because they derive from a common etiology or affect the same bodily system (respiratory system)and,thus, in making this determination,they may be considered as one,collective, disability.

The Board ultimately concluded that the preponderance of the evidence is against finding that before March 5, 2011,the appellant's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment when considering his level of education,prior work experience and training.

The Court reviews the Board's TDIU determinations under the clearly erroneous standard applicable to factual issues.