Citation Nr: 0620794 Decision Date: 07/18/06 Archive Date: 07/26/06 DOCKET NO. 04-35 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than March 7, 1997, for the grant of a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Calvin B. Bennett, III, Attorney-at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from November 1976 to November 1979 and from July 1981 to March 1982. This appeal arises from a February 2003 rating determination of the RO that granted a TDIU and assigned an effective date of March 7, 1997. In a June 2003 decision, the Board dismissed an appeal as to the issue of entitlement to an effective date earlier than March 7, 1997, for a TDIU as not being properly before the Board because a notice of disagreement had not been submitted. In December 2003, the veteran filed a notice of disagreement. A statement of the case was issued and a substantive appeal was received. As such, the issue is now properly before the Board. FINDINGS OF FACT 1. The veteran's initial claim for TDIU was received in March 1982. 2. The veteran has been unable to maintain gainful employment by reason of service connected disability since March 16, 1982. CONCLUSION OF LAW The criteria for an effective date of March 16, 1982, for the grant of a total rating based upon individual unemployability have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. EED An award of total rating for compensation purposes based on individual unemployability is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The assignment of effective dates for increased evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(2) 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.A. § 5110. The law on the effective date of increased ratings has been summarized as follows: If the increase 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). A total disability rating based on individual unemployability due to a service-connected disability may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2005). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2005). The regulations further provide that if there is only such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra- schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot award an extraschedular TDIU in the first instance, but may consider that question after it has been considered by the appropriate first line authority (the Director of VA's Compensation and Pension Service, or the Under Secretary for Benefits. Bolling v. Principi, 15 Vet App 1 (2001). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In his original claim for benefits received in March 1982, the veteran indicated that his disabilities consisted of degenerative joint disease and chondromalacia. He also indicated that he was claiming that he was totally disabled and had not worked since service. His education consisted of completing high school. His employment experience included work as a supply clerk in the Army, and manufacturing deodorizer as a civilian. On VA examination in April 1982, the veteran reported that he had not worked since service. His complaints reportedly consisted of degenerative joint disease and chondromalacia. In May 1982, the RO adjudicated the veteran's initial claim for benefits, and granted service connection for traumatic arthritis of the right hip and chondromalacia of each knee. The hip disability was evaluated as 10 percent disabling, and the chondromalacia as noncompensable. In July 1982 the veteran underwent VA hospitalization due to complaints of right hip pain and was evaluated for a possible right hip replacement. It was decided that he was too young for such a procedure, although he was noted to have significant right hip disability. In August 1982 the veteran submitted a statement in which he questioned the 10 percent evaluation. In September 1982, the RO increased the evaluation for the right hip disability to 20 percent. In letters received in November 1982, the veteran's representative noted the veteran's disagreement with the RO's "ruling on his disability." On VA examination in December 1985, the veteran again reported that he had not been employed since service and that he had a "bad right hip." The examiner noted limitation of motion and other findings of right hip disability, and also reported the veteran's statement that he had been unable to work since the onset of his hip disability. In November 1987, the veteran filed a claim for VA compensation. At that time, the veteran submitted a statement from S. W. Atkins, M.D., who noted the veteran had finished high school and had nine months of a business college education. Dr. Atkins reported the veteran's difficulty with his right hip, indicating that a total hip replacement might be necessary. There was no reference made to the veteran's bilateral knee disability. At the time of a December 1987 VA examination both knees had full range of motion, with no effusion, tenderness, or mild crepitation. There was mild compression pain with patellofemoral joint compression. The ligaments were noted to be stable. On December 16, 1988, a formal claim for TDIU was received. The veteran reported no employment since service. He had completed high school. March 1989 x-rays noted a deformity of the right femoral neck with varus angulation. There were no significant abnormalities of the knees found at that time. At the time of his August 1989 hearing, the veteran voiced his displeasure about the 1987 VA examinations. He noted having difficulties with pain in both knees and stated that he could not do a knee bend. He also testified as to having difficulties with ambulation and regular movement. The veteran reported that he had worked in construction and factory work. He had worked for a synthetic fiber company for a year and for a tubing company making both tubes and pipes. The veteran stated that he had not been gainfully employment since his discharge from military service. The veteran was noted to have worked at one time handling Medicaid and Medicare records. He was asked what would prevent him from doing a similar job. The veteran responded that he could not sit long because of pain "all the time." He also reported that the pain caused difficulty with concentration. The veteran noted having swelling and reported using over-the-counter medications for the pain. He also reported having difficulty sleeping. Following his August 1989 hearing, the veteran was afforded an additional VA examination in October 1989. Physical examination of the knees revealed no limitation of motion. There was some catching of the patella with range of motion of the patellofemoral joint but the right knee was stable on all planes. Medial and lateral joint lines were nontender. Catching of the patellofemoral joint with range of motion was also indicated for the left knee but it was stable in all planes. Diagnoses of degenerative joint disease of the right hip with limited range of motion, chondromalacia of the right and left knees, and low back pain without evidence of neurologic involvement, were rendered. Additional evidence obtained in conjunction with the claim included a September 1982 VA counseling record. At that time, the veteran reported being interested in a "desk job" or "light work." It was noted that he had graduated from high school with a general curriculum in 1971 and that he had attended King's Business College, for approximately eight months. The veteran reported that the curriculum was very much above his ability level. It was noted that the main activity he had engaged in during his active service was supply clerk and that he had not worked since March 1982. Testing performed at that time revealed low aptitude scores. It was found that the veteran did not present the education or vocational skills necessary to compensate adequately for his service-connected disability, thus, he was found in need of vocational rehabilitation training. The veteran was requested make appointments with vocational counselors in an attempt to have a direct placement. In a March 1988 report prepared for Social Security Administration (SSA) disability purposes, it was noted that the veteran's general health was good except for his orthopedic complaints. He was noted to be a candidate for a hip replacement with the exception of his age. His hip was reported to have gradually worsened in severity. The veteran noted having occasional swelling in his knees, more so on the right. He reported using a cane most of the time when out of the house. On a good day he could walk two blocks and stand and sit for thirty minutes. He was unable to drive and pain was present at rest and interfered with his sleep. The veteran reported he was house confined two to three days per month and could not get out much at all on good days. Physical examination revealed that the veteran's knees showed no effusion, deformity or instability. There was full range of motion of his knees. It was also reported that the veteran was generally tender about both knees but the examiner was unable to identify any "real objective pathology." The veteran's hip was stiff and painful. He could flex to 30 degrees and extend to 0. X-ray studies showed significant arthritic change of the right hip while x-rays of both knees were negative. The examiner stated that the veteran was "severely disabled" with respect to his hip problem. It was suggested that the veteran would get good results with a total hip replacement. In the SSA decision report it was noted that the veteran had not engaged in substantial gainful activities since March 1982. It was found that the medical evidence established that the veteran had severe osteoarthritis of the right hip secondary to a past slipped capital femoral epiphysis. A "possible" mild bilateral chondromalacia patellae with coincidental pain was also noted. The SSA determination noted the results of the March 1988 evaluation. The SSA found the veteran's subjective complaints of pain to be entirely credible, given the objective evidence in the record. The veteran was noted to have the residual functional capacity to perform the physical exertion requirements of work except for light lifting and carrying and except for prolonged walking, standing and sitting. The SSA also found that the veteran was unable to perform his past relevant work as a supply sergeant in the Army, a factory machine operator, a file clerk or a construction laborer. It was also indicated that the veteran did not have any acquired work skills which were transferable to the skilled or semi-skilled work activities of other work. Considering the veteran's exertional limitations within the framework of pertinent SSA regulations, it was found that there were not a significant number of jobs in the national economy that he could perform. Accordingly, the veteran was found to have been under a "disability," as defined under pertinent SSA regulations, since March 15, 1982. In June 1990, the Board denied the claim for TDIU. That decision was vacated by a decision of the United States Court of Appeals for Veteran's Claims (Court) in June 1992. In December 1992, the Board remanded this case to the RO to meet the requirements of the Court's June 1992 determination. In conjunction with the remand, a copy of the March 1988 SSA opinion of Dr. Rendleman was obtained. Dr. Rendleman indicated that the veteran would be a good candidate for a total hip replacement in several years. In June 1993, the veteran underwent a right total hip arthroplasty at the Raleigh VA Medical Center (MC). There were no noted difficulties and the veteran was discharged from the VAMC that month. This matter was again remanded in January 1995 for additional development. At the time of an April 1995 VA examination, the veteran was noted to have undergone a total hip arthroplasty in 1993. While the veteran complained of right hip pain, range of motion of that hip was normal. Examination of the knees showed mild patellofemoral grating and clicking consistent with chondromalacia. There was no evidence of internal derangement, instability, or inflammatory arthritis. The examiner stated that the veteran's right hip was painful enough to cause disability resulting in a limp. The examiner noted that the veteran was not using the cane on the day of the examination. He further observed that the veteran's knee disorder appeared only mild on examination. The examiner stated that it was his opinion that the veteran would only be capable of light work or work of a sedentary nature. He was noted to be able to read and write and his education was consistent with his completion of High School. X-ray studies of the veteran's left hip were "essentially unremarkable." The right hip showed evidence of a hip prosthesis present and fixed and in good position. There were no significant pathological findings noted for the knees. In a March 1996 letter, Dr. Rendleman indicated that the veteran had been under his care for several years. He noted that the veteran had undergone a total right hip replacement with osteoarthritis and that the veteran had multiple joint problems including chronic back pain. Dr. Rendleman stated that these combined problems prevented the veteran from being able to seek gainful employment. In July 1996, the Board again remanded this matter for clarification about the veteran's proper representative. The veteran underwent an additional SSA evaluation in November 1996. At the time of the examination, the veteran's complaints of mid-lower back pain were noted. The veteran reported that he continued to have difficulties with walking due to the pain he was experiencing. The veteran was not currently working and stated that he did not think he could do any work. He was noted to be off all medications. Physical examination revealed full extension and full flexion that was free of pain. Examination of the lumbar spine showed mild tenderness, minimal flexion, minimal extension, and minimal rotation. Reflexes in the lower extremity were noted to be normal. There was no deformity, swelling, or effusion in either knee. X-ray studies of the veteran's right hip showed no bony pathology other than the total joint replacement that was found to be well seated with no evidence of loosening. The examiner indicated that it was his opinion that the veteran had a mild orthopedic problem that prevented him from any work that involved bending, pushing, pulling, lifting, crawling or climbing. He noted that the veteran should be able to perform a light-sitting job. In February 1997, the Board again remanded this matter. In a March 1997 statement, the veteran reported having difficulties with his legs, knees, both hips, both feet and back. He stated that his legs hurt all the time and that the pain ran up and down the legs. The veteran indicated that he could not rest at all. He stated that his knee was swollen all the time and that both hips hurt "real bad." He indicated that his left hip was as bad as the right. The veteran stated that his feet also gave him pain. He reported that he could not sleep during the day or at night. He also indicated that the pain limited his walking and that the pain ran down the back of his legs. He also stated that he had back pain with pulled muscles and difficulty getting out of bed. The veteran noted that he was unable to work due to this pain. At the time of a June 1997 social and industrial survey, the veteran was noted to have had significant problems with his hip and joints as a result of his service-connected injury. He reiterated his view that these injuries made it impossible for him to obtain or maintain any substantial gainful employment. The veteran stated that it was his belief that hip problems had caused him to have other leg and joint problems. He also was also experiencing low back pain. The veteran reported that he had not been employed since his discharge from active service. He contended that his pain and discomfort was to a degree that made it impossible for him to seek employment. He was also concerned about the type of employment he might obtain. The veteran stated that it would be impossible for him to obtain construction work and he felt that he would be an insurance risk for a job such as in K-mart, Wal-Mart, or any job that required any lifting, standing or stooping for even brief periods. He indicated that he spent a good deal of time around his home. He reported that he socialized with family members but was unable to engage in any extended activity away from his home. The VA social worker indicated that in light of the veteran's hip problems and his chondromalacia, it seemed unlikely that he would be able to obtain and maintain any substantial gainful employment. The reviewer stated it was likely he would be considered an insurance risk. He also noted that the veteran's service-connected problems were a factor in his degenerative disc disease that would further limit his ability to obtain or maintain any substantial gainful employment. At the time of a June 1997 VA examination, the veteran reported having some soreness in the right hip. Physical examination revealed a normal gait and a right hip scar that was not tender to touch or stretching. The veteran had no discomfort standing, sitting or walking. Range of motion of the hip revealed flexion to 90 degrees, eversion to 25 degrees, and inversion to 20 degrees, which produced discomfort. The veteran had 40 degrees of abduction and 40 degrees of adduction without discomfort. The hips were equal in strength and the lower extremities were equal in length. There was aching and soreness with movement of the left hip. The external appearance of the hips was identical except for the scar in the right hip. There was no tenderness over the left hip and the left hip had flexion to 120 degrees. The examiner indicated that there was no objective evidence of pain over or about the area of the scar and there was no functional impairment due to the pain of the right hip other than on inversion with no incoordination of either hip. The veteran also reported having aching in both knees with swelling. He stated that his knees were sore after walking. The veteran attempted to walk every day. Physical examination revealed that the knees were symmetrical. There was no tenderness or swelling present. Subpatellar crepitation, bilaterally, was noted. Range of motion was full and the knees were stable to stress. X-ray studies performed during the month revealed no arthritic condition. The examiner stated that functional impairment due to pain attributed to the knees and the hip was that prolonged walking and standing would be expected to have discomfort in the knees, but there was no functional impairment demonstrated at the time of the examination and there was no limitation of function due to pain in the knees. He further reported that there was no incoordination as a result of the hip or knees and that there was no deficit on examination of the lumbar spine affecting his service-connected disabilities. He further reported that the symptoms the veteran had noticed in his ankles would have had no functional impairment on his knees or hips. The examiner found that the veteran's extensive lumbar disease was not caused by his hip or knee problems but did add to his functional limitations. In July 1998, the Board again denied the claim for TDIU. This decision was vacated by the Court in accordance with a joint motion for remand. Following the Court's April 2000 order vacating the Board's June 1998 TDIU denial, the Board remanded this matter for additional development in September 2000. In February 2001, the veteran was afforded a VA social and industrial survey. The examiner noted the veteran's work history. The veteran reported that the pain and the inability to sit or stand for prolonged periods of time would preclude employment. He stated that no one would ever hire him. The examiner commented that since the veteran had never worked since the onset of his service-connected disability, there was no actual evidence to determine his ability to obtain or maintain employment. He noted that the veteran was in receipt of social security disability but observed that this was inconsistent. The reviewer stated that the medical evidence of record provided varying opinions as to the veteran's ability to work. The examiner indicated that one thing was for certain, that the veteran was not ever seeking to obtain employment. The examiner opined that there was insufficient evidence to support a conclusion that the veteran's service-connected disabilities alone precluded him from securing or following substantially gainful employment. In an April 2001 letter, Dr. Rendleman wrote that a 50 percent disability evaluation was appropriate for the veteran's hip as the veteran did not have a hip joint but rather an artifical contraption that was prone to wear, loosening, or even infections. In a May 2002 report, C. Bash, M.D., an independent medical examiner hired by the veteran's attorney, expressed his opinion that the veteran had been unemployable since he left the service. He noted that the veteran had multiple service related disabilities, including his spine, right hip, bilateral knees, and ankles, and that these disabilities caused him numbness/pain, loss of motion, sciatica, an inability to sit or stand, and an inability to do any heavy lifting. He further observed that the veteran had been categorized as disabled by the SSA since 1986 and had not had gainful work since 1982. He also noted that psychological testing performed in September 1982 had revealed the veteran to have a very poor prognosis for any training program. He further observed that the veteran had developed severe secondary disc degeneration due to his hip/knee problems. Dr. Bash also noted the previous findings of VA examiners who stated that the veteran could only do light or sedentary work and the statement from Dr. Rendleman that the veteran could not seek gainful employment due to his service-connected disabilities. Dr. Bash indicated that he did not agree with those individuals who stated that the veteran could work on a full-time basis as they did not acknowledge the veteran's poor psychological testing which showed very poor aptitude or training potential for non-manual jobs; as they did not acknowledge that the veteran had degenerative disc disease; as they did not give a plausible etiology for the spine and ankle disseise; and as they did not discuss the other opinions of record. In a December 2003 report, Dr. Bash said that it was still his opinion that the veteran had been unemployable since 1982. He did not agree with the effective date of March 7, 1997, as the date that the veteran became unemployable as the veteran had not worked since 1982 and as the Social Security Administration found that the veteran had been unemployable since 1986. He again noted the results of the September 1982 psychological testing which found that the veteran had a very poor prognosis for any training program. In December 2004 report, the Director for Compensation and Pension Service addressed the issue of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) and 4.16(b). The Director found that on the basis of medical records available prior to March 7, 1997, there was no clear indication that the veteran's service-connected conditions at the time were so severe as to interfere with gainful employment. Entitlement to an extraschedular evaluation based on IU prior to March 7, 1997, was found to not be warranted. Analysis A determination of the proper effective date turns on determinations of when the claim was made, when entitlement arose, and whether there are intervening final decisions that would bar an earlier effective date. The veteran initially claimed that service connected disabilities rendered him totally disabled in his March 1982 claim for VA benefits. The undisputed evidence shows that he has not been employed since separation from service on March 15, 1982. While the social worker who conducted the social and industrial survey concluded that the service connected disabilities did not preclude gainful employment, most opinions have been to the contrary. The VA vocational counseling report shows that the veteran's service connected disabilities were found to preclude gainful employment absent additional training. The record shows that the veteran never received this training and his reportedly low aptitude would presumably have made such training difficult. Some examiners opined that the veteran's service connected disabilities would have permitted sedentary or light physical labor, but the veteran has little experience that would have qualify him for such employment. VA and Social Security experts essentially concluded, as early as 1982, that the veteran's service connected disabilities rendered him unable to perform any suitable employment. The Federal Circuit has held that final rating decisions that fail to adjudicate claims for TDIU, must be challenged through a claim of clear and unmistakable error in those decisions. Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003). In this case, there are rating decisions that failed to adjudicate the claim for TDIU, but they did not become final so as to serve as a bar to an earlier effective date. In sum, the veteran's claim for TDIU was received in March 1982, and the record shows that the veteran was entitled to TDIU from the day following discharge from service. Accordingly, an effective date of March 16, 1982 for the grant of TDIU is granted. ORDER An effective date of March 16, 1982, for the grant of TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs