Citation Nr: 0608909 Decision Date: 03/28/06 Archive Date: 04/04/06 DOCKET NO. 03-11 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date earlier than April 14, 2000, for the assignment of a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph Michael Horrigan, Counsel INTRODUCTION The veteran had active military service from November 1966 to September 1970 and from July 1973 to July 1977. This appeal is before the Board of Veterans' Appeals (Board) from a May 2002 rating decision from the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO) that granted TDIU from April 14, 2000. In a February 2005 decision the Board denied entitlement to an effective date prior April 14, 2000, for a grant of TDIU. The veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2005 Order, the Court vacated the Board's February 2005 decision and remanded the case back to the Board for further adjudication. The issue of entitlement to an effective date prior April 14, 2000, is now before the Board for further appellate consideration. FINDING OF FACT A claim for a TDIU was received at the RO on November 7, 1997 and a statement from a VA social worker was received on November 17, 1997 indicating that the veteran's PTSD rendered him unemployable. CONCLUSION OF LAW The criteria for an effective date of November 17, 1997, for the grant of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.400 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). In Pelegrini v. Principi, 18 Vet. App. 112, 120-1 (2004) the United States Court of Appeals for Veterans Claims (Court) found that a VCAA notice letter consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) (2003) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present appeal, the VCAA notice to the veteran dated in July 2004 specifically addressed the veteran's claim for an earlier effective date. This letter, in conjunction with the February 2003 Statement of the Case, described the law and regulations governing, and described the type of evidence necessary to establish, an effective date for the assignment of a TDIU. The July 2004 letter also informed him of who was responsible for obtaining what evidence and told the veteran to submit all relevant evidence and information in his possession. In Pelegrini the majority also held that the VCAA notice, as required by 38 U.S.C.A. § 5103(a), should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the VCAA notice was sent to the appellant subsequent to the initial rating action currently being appealed. However, the appellant has had ample opportunity to submit additional argument and evidence after the VCAA notice was provided. The delayed notice did not, therefore, prejudice him. See also Mayfield v. Nicholson, 19 Vet. App. 103, 123-4 (2005) (per curium) (en banc) (holding that delayed notice is generally not prejudicial to a claimant). In addition, it does not appear that any evidence is available but not yet associated with the record. It is noted in this regard that, in a 90-Day Letter Response Form signed by the veteran and dated February 22, 2006, it was indicated that no relevant evidence was outstanding in this case. Accordingly, the Board will now adjudicate the veteran's claim for an earlier effective date for a TDIU based on the evidence of record. A September 1977 rating decision granted service connection and a noncompensable rating for bilateral chondromalacia from July 2, 1977. A June 1991 rating decision granted service connection and a noncompensable rating for malaria. A March 1997 hearing officer decision granted service connection and an initial 10 percent rating for PTSD from May 16, 1994. A June 1998 rating decision increased the rating for PTSD to 50 percent from May 16, 1994. A December 7, 1999 Board decision increased the rating for PTSD to 70 percent, and a January 2000 rating decision assigned the 70 percent rating from May 16, 1994. The May 2002 rating decision granted TDIU from April 14, 2000. Review of the record indicates a VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Unemployability) signed by the veteran and dated November 7, 1997. This was accompanied by a statement from the veteran in which he clearly claimed to be unemployable due to his service connected psychiatric disability. The record also contains a statement from a social worker dated November 6, 1997 that indicated, in essence, that the veteran was in receipt of a Global Assessment of Functioning score (GAF) of 45 due to his psychiatric disability. (A GAF score of 45 indicates psychiatric symptomatology of such severity as to render the veteran unable to work.) Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2004). For disability compensation stemming from direct service connection, the effective date will be the day following separation from active service or date entitlement arose if claim is received within 1 year of separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2004). 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. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). Because the date of the veteran's claim was prior to the date the entitlement to a TDIU was factually ascertainable, the effective date for a grant of a TDIU in this case is November 17, 1997, the date of receipt of the statement from the social worker indicating that the veteran was unemployable with a GAF score of 45 due to service connected disability. An effective date earlier than November 1997 is not warranted because the record does not disclose a formal or informal claim for TDIU prior to that time. Moreover, the evidence does not clearly demonstrate unemployability prior to that date. For example, psychological tests performed in September 1995 included the Shipley Institute of Living Scale, Minnesota Multiphasic Personality Inventory-2, and the Personality Assessment Inventory revealed a GAF score of "55/60." VA clinical records reveal that the veteran's PTSD was assessed as having a GAF score of "50-55." GAF scores such as these do not demonstrate that the veteran's PTSD rendered him unemployable. Accordingly, the effective date for a grant of a TDIU in this case is November 17, 1997. ORDER Entitlement to an effective date of November 17, 1997 for the assignment of a TDIU is granted. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs