Citation Nr: 0510171 Decision Date: 04/08/05 Archive Date: 06/28/05 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 02-21 364 ) DATE APR 27 2005 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine ORDER The following corrections are made in a decision issued by the Board in this case on April 8, 2005: On page 2, FINDINGS OF FACT number 3, line 1. “for the establishment TDIU” is corrected to read “for the establishment TDIU on an extraschedular basis” On page 2, CONCLUSION OF LAW “An effective date of April 24, 2000, for the award of TDIU is warranted. 38 U.S.C.A. §§ 1110, 5101, 5102, 5103, 5104, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(r), 3.151(a), 3.159, 3.340, 3.341(a), 3.400(o),(q)(ii),(r) (2004)”, is corrected to read “An effective date of April 24, 2000, for the award of TDIU, on an extraschedular basis is warranted. 38 U.S.C.A. §§ 1110, 5101, 5102, 5103, 5104, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(r), 3.151(a), 3.159, 3.340, 3.341(a), 3.400(o),(q)(ii),(r), 4.16(b) (2004). Add the following phrase to the end of the last line on page 7, “,on an extraschedular basis.” Add the following phrase to the end of the ORDER on page 8: “,on an extraschedular basis.” ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 0510171 Decision Date: 04/08/05 Archive Date: 04/21/05 DOCKET NO. 02-21 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an effective date earlier than February 5, 2002, for the grant of a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active military service from June 1957 to June 1960. This case comes to the Board of Veterans' Appeals (Board) from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine that increased the rating for the veteran's service-connected low back disability to 60 percent and granted TDIU, with an effective date of February 5, 2002. FINDINGS OF FACT 1. All evidence necessary for adjudication of the issue for an earlier effective date for the award of TDIU have been obtained by VA. 2. A claim service connection for low back disability was received on April 24, 2000. 3. The earliest effective date for the establishment TDIU is April 24, 2000, the date of receipt of the veteran's claim for service connection. CONCLUSION OF LAW An effective date of April 24, 2000, for the award of TDIU is warranted. 38 U.S.C.A. §§ 1110, 5101, 5102, 5103, 5104, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(r), 3.151(a), 3.159, 3.340, 3.341(a), 3.400(o),(q)(ii),(r) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), was signed into law. To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. In an August 2002 rating action, the RO granted TDIU and established February 5, 2002 as the effective date for the TDIU. A timely notice of disagreement (NOD) to the effective date was received, and this appeal ensued. Initially, the Board notes that Huston v. Principi, 17 Vet.App. 195 (2003) was issued on July 11, 2003. In that decision, the Court of Appeals for Veterans Claims (Court) found that VA failed to meet the requirements of 38 U.S.C.A. § 5103(a) in neglecting to provide the veteran with specific notice that met the standard established by section 5103(a) and 38 C.F.R. § 3.159(b) as to his direct-appeal earlier effective date (EED) claim. In Huston, as in the case present, the issue of an EED was raised in the NOD. Subsequent to the Court decision in this case, VA General Counsel (GC) issued a precedential opinion, VAOPGCPREC 8- 2003. In that opinion, it was determined: Because section 5103(a) notice is required only upon receipt of a complete or substantially complete application, and, as in the situations described above, a new issue raised in an NOD is not generally considered an application for benefits, section 5103(a) notice is not required upon receipt of an NOD raising a new issue. In the body of that opinion, GC presented, as an example, a fact pattern essentially the same as is now presently before the Board; that is, when an effective date issue is raised in a NOD. GC held that the notice requirements of 38 U.S.C.A. § 5103(a) did not apply. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. 38 C.F.R. § 19.5 (2004). Therefore, because of this recent GC opinion, the holding in Huston is not applicable in this case. In any event, as described below, the RO has conducted exhaustive development in effort to obtain evidence in support of the veteran's claim. The veteran and his representative have been duly informed of such efforts, and have not responded to the RO's requests for further information. Factual Background In April 1964, the RO determined that service connection for "spondylisthesis" with low back strain was not warranted. A September 1998 statement from a private physician indicates that the veteran was disabled from his job which involved lifting up to 300 boxes of apples, each weighing about 40 pounds. An October 1999 statement from the same physician indicated that the veteran had been under his care for spinal stenosis and a ruptured lumbar disc. He noted that the veteran had undergone disc excision surgery in July 1998 and had continued to have intractable pain that was refractory to medication. He opined that the veteran could not return to his job as a truck driver due to limitations caused by his back disability. Private treatment records from June 2000 indicate a new disc herniation. It was noted that the veteran had been accepted for Worker's Compensation. The veteran inquired whether the new herniation could have been related to his low back injuries in service, and provided records of treatment for lumbosacral injuries in service. The physician indicated that such injuries could be a factor that precipitated the disc herniation. On VA examination in November 2000, the veteran reported that he was in receipt of Social Security disability due to his low back problems. He indicated that he had been a truck driver until he had suffered a twisting injury while lifting a heavy crate of apples. He indicated that he had been covered by Worker's Compensation for ensuing surgery. The examiner noted that X-rays taken in service identified spondylolysis. The impression was chronic recurrent low back strain and spondylolysis. The examiner indicated that the spondylolysis was certain to have existed prior to the veteran's entering the service. He noted that the veteran's lumbar disc disease was note related to the other diagnoses and developed later in life. In a December 2000 addendum, the examiner noted that the two diagnoses provided in the examination report might be totally indistinguishable. By a rating action dated in December 2000, the RO granted service connection for low back strain and determined that a 40 percent evaluation was warranted, effective April 24, 2000. The veteran was properly notified of that rating action. The veteran submitted his claim of entitlement to TDIU and for an increased rating for his back disability in February 2002. On VA examination in July 2002, the veteran complained of constant low back pain, left lower extremity pain, and pain with weight bearing. The assessment was chronic low back strain, myofascial dysfunction, degenerative disc disease as shown on previous X-rays. The examiner concluded that the veteran was not employable for any type of position that would require prolonged weight bearing or any heavy lifting greater than 20 or 30 pounds. By a rating action dated in August 2002, the RO increased the evaluation for the veteran's low back disability to 60 percent and granted TDIU. The effective date was established as February 5, 2002, the date of receipt of the veteran's claim. In December 2002, the RO requested an additional opinion from the July 2002 VA examiner. He responded in December 2002, noting that it may be impossible to separate the symptoms of the veteran's low back strain and those of spondylosis or disc disease. He indicated that it was quite clear that the veteran's lower extremity pain was resolved following discectomy. He concluded that it was as likely as not that the veteran's unemployability was secondary to spondylosis and not to the low back strain. Social Security Administration (SSA) records received in June 2003 indicate that the veteran was in receipt of benefits due to discogenic and degenerative disorders of the back. SSA determined that the veteran's disability began in May 1998. The veteran's application for benefits indicates that he first sought treatment for a low back injury in June 1998. Analysis The type of claim that is at issue here, a TDIU claim, qualifies as a claim for increased disability compensation and is subject to the more specific criteria under 38 U.S.C.A. § 5110(a) and (b)(2) (West 2002) and 38 C.F.R. § 3.400(o)(2) (2004), which sets forth the method of determining the effective date of an increased evaluation. The general rule provides that the effective date of such award "shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date will be the date of receipt of claim or the date entitlement arose, which ever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, under circumstances where 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. In that regard, the law provides that the effective date of the award "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, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA. 38 C.F.R. § 3.1(r) (2004). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p); 3.155 (2004). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a) (2004). In this case, the evidence of record indicates that service connection was granted for low back disability in December 2000. The effective date for the award was determined to be April 24, 2000. The Board has reviewed the record and has determined that at the time of the original VA medical examination in November 2000, the veteran informed VA that he was in receipt of Social Security Administration (SSA) disability benefits based on his low back disability. This can be construed as an informal claim for TDIU. Furthermore, once VA was put on notice that the veteran was in receipt of SSA disability benefits, the VA had a duty to obtain these records. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992). Now that these records have been obtained, it is apparent to the Board that the low back disability for which the veteran was service-connected is the same disability as that for which he was awarded SSA disability benefits. Consequently, the Board finds that had an informal claim arose when the veteran indicated that he was in receipt of SSA disability benefits for his low back. Had this been properly pursued, it would have been reasonable to conclude that the veteran was totally disabled due to service- connected disability on April 24, 2000, and this is the date on which it could be factually ascertained that an award of TDIU was warranted. Accordingly, the Board concludes that the criteria for an effective date prior to February 5, 2002, for a TDIU have been met. ORDER Entitlement to an effective date earlier of April 24, 2000, for a grant of TDIU is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs