Citation Nr: 0300890 Decision Date: 01/15/03 Archive Date: 01/28/03 DOCKET NO. 97-30 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an effective date prior to May 30, 1996 for the grant of a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. A. Speck, Associate Counsel INTRODUCTION The veteran had active service from September 1981 to November 1994. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1998 rating decision of the Department of Veteran's Affairs (VA) Regional Office in Cheyenne, Wyoming (the RO). The veteran's claim of entitlement to an earlier effective date for TDIU was previously before the Board. In August 1999, that issue was remanded to the RO for additional development. That development has been completed, and the claim is once again before the Board on appeal. The Board observes that at the time of its August 1999 remand, the effective date for TDIU was March 20, 1997. In an October 2002 decision, the RO granted an earlier effective date May 30, 1996. In a statement in support of his claim dated December 1, 2002, the veteran reiterated his previously stated contention that the effective date for TDIU should be September 1, 1995. The issue of an earlier effective date thus has not been completely resolved and still remains to be adjudicated by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) [applicable law mandates that it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that a claim remains in controversy where less than the maximum benefit available is awarded]. FINDINGS OF FACT 1. The veteran's formal claim of entitlement to TDIU was received on March 20, 1997. 2. The earliest date on which it was factually ascertainable that the veteran's service-connected disabilities warranted entitlement to TDIU was May 30, 1996. CONCLUSION OF LAW The establishment of an effective date earlier than May 30, 1996 for TDIU is not appropriate. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(o) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking an effective date for the grant of TDIU earlier than the currently assigned May 30, 1996. In essence, he contends that the effective date should be the same as the September 1, 1995 effective date assigned by the Social Security Administration (SSA) for disability benefits. He points to medical records showing that he was experiencing major depression as of that date. In the interest of clarity, after reviewing generally applicable law and regulations and describing the factual background of this case, the Board will discuss the issue on appeal. Relevant law and regulations The VCAA The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A. Regulations implementing the VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. In this case, the veteran's claim was filed in March 1997 and remains pending. The provisions of the VCAA and the implementing regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. (i.) Standard of review The current standard of review for all claims is as follows. Once all the evidence has been brought together, the Board has the responsibility to evaluate the record on appeal. See 38 U.S.C.A. § 7104 (West Supp. 2002). When there is an approximate balance of the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West Supp. 2001); 38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). (ii.) Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to a claimant describing evidence potentially helpful to the claimant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The veteran was informed in April 1998 and October 2002 letters and rating decisions of the evidence needed to substantiate his claim, and he was provided an opportunity to submit such evidence. Moreover, in a July 1998 statement of the case and a supplemental statement of the case issued in October 2002, the RO notified the veteran of regulations pertinent to earlier effective date claims, informed him of the reasons why his claim had been denied, and provided him additional opportunities to present evidence and argument in support of his claim. In an August 2001 letter and the October 2002 supplemental statement of the case, the veteran was informed of VA's duty to obtain evidence on his behalf. Copies of VCAA regulations were provided to the veteran in the October 2002 supplemental statement of the case. The veteran was notified that VA would obtain all relevant service medical records, VA medical records, and reports of examinations or treatment at non-VA facilities authorized by VA. In addition, VA would request other relevant records held by any Federal agency or department. In turn, the veteran was informed of his duty to provide VA with enough information to identify and locate other existing records, i.e., names of persons, agencies, or companies that hold relevant medical records, addresses of these individuals, and the dates that such treatment was received. The Board finds that the foregoing information provided to the veteran satisfies the requirements of 38 U.S.C.A. § 5103 and Quartuccio in that the veteran was clearly notified of the evidence necessary to substantiate his service connection claim. Under these circumstances, the Board finds that the notification requirement of the VCAA has been satisfied. (iii.) Duty to assist The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board remanded this issue in August 1999 so that additional evidence could be associated with the veteran's VA claims folder. This was accomplished. The veteran's service medical records have been received, as have VA outpatient treatment reports and private medical records. In addition, the veteran was afforded several VA examinations in February 1995, May 1996, September 1996, April 1997, May 1997 and April 1998. The Board finds that all known and ascertainable medical records have been obtained and are associated with the claims file. The veteran does not appear to contend that additional evidence which is pertinent to this claim exists. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. He testified at a personal hearing at the RO in December 1997. Both he and his accredited representative have submitted written argument to the RO and to the Board. In summary, the Board finds that VA has done everything reasonably possible to assist the veteran and that no further action is necessary to meet the requirements of the VCAA and the applicable regulatory changes published to implement that statute. The Board will accordingly proceed to a review of the merits of the issue on appeal. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2002). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2002). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a) (2002). A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a) (2002). Effective dates The effective date of an award of increased disability compensation is the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year thereof. Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400(o)(1) (2002). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim had not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2002). If a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. Acceptance of a report of examination or treatment as a claim for increase is subject to the payment of retroactive benefits from the date of a report or for a period of one year prior to the date of receipt of the report. See 38 C.F.R. § 3.157 (2001). As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital. 38 C.F.R. § 3.157(b)(1). Factual background The veteran was separated from service after 13 years due to injuries sustained in a motor vehicle accident in March 1993. He filed a claim of entitlement to service connection for several claimed disabilities (not including a psychiatric disability) on November 28, 1994. In December 1994, the RO granted service connection for cervical spine, left knee and left arm disabilities, effective November 11, 1994, the day after the veteran left military service. See 38 C.F.R. § 3.400(b). The combined disability rating was 40 percent. In a September 22, 1995 RO rating decision, the combined disability rating was increased to 50 percent, effective November 11, 1994. On September 29, 1995, the veteran submitted a copy of a medical treatment record dated September 22, 1995. The treatment was done at an United States Air Force medical facility; the veteran was on the temporary disability retired list (TDRL). Although the purpose of the treatment was for (service connected ) neck and back pain, the treating physician reported "he is slowing showing signs of substantial depression . . . the patient is having clinical depression . . . . Psychiatric intervention may be required." Of record is the report of a May 30, 1996 VA mental health assessment, which resulted in an assessment of depression. The report indicated that the veteran had been permanently retired from the United States Air Force that month. In July 1996, the veteran, through his accredited representative, filed a claim of entitlement to service connection for several acquired psychiatric disorders, including depression. In January 1997, the veteran was awarded service connection for major depression, effective the date of the veteran's informal claim, the VA mental health assessment, May 30, 1996. A 30 percent disability rating was assigned, increasing the combined rating to 70 percent, effective May 30, 1996. The veteran initially filed a claim of entitlement to TDIU on March 20, 1997. The RO denied that claim in August 1997, stating that the veteran's service-connected disabilities were not shown to preclude substantially gainful employment. The veteran appealed the RO's decision to the Board. Prior to Board review, in April 1998, the RO granted service connection for a low back disability, effective September 26, 1997. The RO also granted the veteran's claim of entitlement to TDIU, effective March 20, 1997, the date of the veteran's TDIU claim. In a May 1998 statement, the veteran asserted that the effective date of TDIU should be September 1, 1995, the same effective date that had been designated by SSA for disability benefits. In July 1998, the RO denied the veteran's claim for an earlier effective date for TDIU. In August 1999, the Board remanded the issue of entitlement to an effective date prior to March 20, 1997 for TDIU to the RO for additional development. In an October 2002 rating decision, the RO granted an earlier effective date for the veteran's TDIU, May 30, 1996, the same effective date as for the veteran's service-connected major depression. The veteran has continued to maintain that September 1, 1995 should be the effective date for his TDIU. Analysis The veteran has been granted TDIU, effective May 30, 1996. He contends that his TDIU effective date should be September 1, 1995, the date assigned by the SSA for disability benefits. On May 30, 1996, the veteran underwent a VA examination for psychiatric disorders which resulted in an assessment of major depression. The RO considered this to be an filed an informal claim of entitlement to service connection for major depression. The veteran filed a formal claim of entitlement to service connection for depression in July 1996 and service connection for major depression was granted effective May 30, 1996. The veteran filed a claim of entitlement to TDIU on March 20, 1997. In its October 2002 rating decision, the RO assigned May 30, 1996 as the effective date for TDIU, stating that May 30, 1996 was the earliest date on which the veteran met the basic eligibility requirements for TDIU. See 38 C.F.R. § 3.400(o). The RO additionally commented that an effective date for TDIU of September 1, 1995 was not warranted. The RO noted that the SSA had based its opinion on disabilities of the neck, back, left shoulder, arm, knee and depression. The RO noted that depression appeared to be a "significant factor" in the SSA's decision. However, the veteran was not service connected for depression until May 30, 1996 and was not service connected for a low back disability until September 26, 1997. It is clear that the veteran filed a formal claim of entitlement to TDIU on March 20, 1997. The RO has already assigned May 30, 1996 as the effective date for the veteran's TDIU because the veteran's unemployability due to his service-connected disabilities was factually ascertainable as of that date. See 38 C.F.R. § 3.400(o). The Board has reviewed the record to ascertain whether there are any claims of entitlement to TDIU, either formal or informal, before March 20, 1997. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board is required under statute and regulation to evaluate the evidence of record dating back one year before the claim's filing to determine whether the veteran's unemployability due to service-connected disabilities was ascertainable within on year before he submitted his formal claim]. See also 38 U.S.C.A. § 5110(b)(2). The Board finds that there are none, and the veteran himself has identified none. In so concluding, the Board has paid particular attention to the treatment record dated September 22, 1995, which appears to have been the first evidence of depression. This Air Force medical treatment record clearly cannot be considered to be a formal claim for TDIU. It also cannot be considered to be an informal claim for TDIU, because it does not identify TDIU as "the benefit sought" as required by § 3.155(a). See Dunson v. Brown, 4 Vet. App. 327, 330 (1993). The record merely indicates that the veteran had been recently troubled by depression in addition to his physical complaints and that psychiatric intervention might be necessary. There is no hint that the veteran was unemployable due to his disabilities, including depression, or that the veteran was so claiming. This situation is unlike that in Roberson v. Principi, 251 F. 3d 1378 (2001). In Roberson, the United States Court of Appeals for the Federal Circuit held that when a veteran submits evidence of a medical disability and makes a claim for the highest rating possible and additionally submits evidence of unemployability, the "identify the benefit sought" requirement of section 3.155(a) has been met and VA must consider TDIU. VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether a claim is specifically labeled as a claim for TDIU. Here, there is no indication whatsoever that the veteran was seeking TDIU in September 1995. In Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the Board must interpret an appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant. The Court has also held that an appellant must have asserted the claim expressly or impliedly. See Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995). Prior to March 20, 1997, the veteran did not raise a TDIU claim, either expressly or impliedly. The Board additionally finds that there is no evidence earlier than May 30, 1996 within the year preceding March 20, 1997 (or for that matter otherwise) which supports the proposition that the veteran was unemployable due to his service-connected disabilities. The United States Court of Appeals for Veterans Claims (the Court) has made it clear that the question of when an increase in disability is factually ascertainable is answered by the Board based on the evidence in a veteran's VA claims folder. See Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992): "evidence in a claimant's file which demonstrates that an increase in disability was 'ascertainable' up to one year prior to the claimant's submission of a 'claim' for VA compensation should be dispositive on the question of an effective date for any award that ensues." See also Servello v. Derwinski, 3 Vet. App. 196, 200 (1992): "the Board was required under statute and regulation to evaluate the evidence of record dating back to . . . the date one year before the claim's filing to determine whether the veteran's unemployability due to service-connected disabilities was ascertainable within the year before he submitted his formal claim. See also Scott v. Brown, 7 Vet. App. 184, 188 (1994) [citing Quarles] and Hazan v. Gober, 10 Vet. App. 511, 518 (1997); see also VAOPGCPREC 12-98. In Hazan, the Court held that 38 U.S.C. § 5110(b)(2) requires review of all the evidence of record as to the disability in order to ascertain the earliest possible effective date. See Hazan, 10 Vet. App. at 517-18; see also Swanson v. West, 12 Vet. App. 442, 447-48 (1999). The veteran has referred to the determination of SSA. The SSA determination upon which the veteran relies was dated March 24, 1997, which was a few days after his March 20, 1997 claim. VA is not bound by the findings of disability and/or unemployability made by other agencies, including the Social Security Administration. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). The SSA determination focused on the veteran's depression and accurately reported that its onset was initially noted in September 1995 but that he did not seek treatment until May 1996. Nonetheless, the SSA Administrative Law Judge (ALJ) found the veteran to be disabled from September 1, 1995 due to "the claimant's increased depression". The reasons for this conclusion are unclear. There was no clinical identification of depression before September 1995, so the cannot understand the use of the word "increased". In addition, the SSA ALJ did not explain why the veteran's depression rendered him unable to work as of September 1, 1995, did not refer to specific medical evidence in support of that conclusion and did not square his conclusion with the fact, mentioned in the decision, that the veteran did not seek treatment for depression until May 1996. The Board disagrees with the conclusion of the SSA ALJ and declines to follow it. The Board's reasoning has been stated above. Although there is the September 1995 reference to the onset of depression, there is no indication that it significantly impaired the veteran or rendered him unemployable. The veteran did not seek medical treatment for depression until May 1996. The Board believes that may 30, 1996 is the earliest date upon which it was factually ascertainable that depression, in combination with the veteran's other service-connected disabilities, rendered him unemployable. In short, although the veteran contends that because SSA considered him to be unemployable as of September 1, 1995, VA should do so also, as explained above, the effective date assigned for TDIU is dictated by the law and regulations and is largely dependent on when the claim is filed with VA. See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.155, 3.400. In this case the veteran's TDIU was filed on March 20, 1997 and it was factually ascertainable that the veteran was unemployable as of the May 30, 1996 VA medical record and no earlier. In addition, as alluded to by the RO in its October 2002 decision, the Court has held that an effective date for TDIU cannot predate the effective date for service connection for the disability upon which the claim of TDIU is based. See Firek v. Derwinski, 3 Vet. App. 145, 148 (1992). The Board notes that the veteran's service- connected disabilities did not meet either the percentage or unemployability requirements for TDIU until April 14, 1998. At that time the RO granted service connection for major depression, effective May 30, 1996. Thus, an effective date earlier than May 30, 1996 for TDIU is not warranted because the veteran did not meet the unemployability requirements prior to that date. The evidence does not support the veteran's claim of entitlement to an effective date prior to May 30, 1996 for an award of TDIU because the veteran was not service- connected for major depression until May 30, 1996. In conclusion, the Board finds that the RO properly assigned an effective date of May 30, 1996 for an award of a TDIU. The veteran's claim of entitlement to an effective date prior to May 30, 1996 is therefore denied. ORDER An effective date prior to May 30, 1996 for an award of a total disability rating based upon individual unemployability due to service-connected disabilities is denied. Barry F. Bohan Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.