Citation Nr: 0729021 Decision Date: 09/14/07 Archive Date: 09/25/07 DOCKET NO. 99-10 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than January 1, 1994, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from September 1985 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The veteran's attorney presented argument at a Central Office hearing in March 2005. The Board remanded the veteran's case for additional development in April 2005. The veteran's attorney submitted several statements wherein a new Board hearing was requested. The Board wrote to the veteran to clarify her intentions in regard to a hearing in October 2006. The clarification was required because the veteran had failed to report for the previous hearing. Instead her attorney had presented oral argument at the hearing. The veteran was given 30 days to respond to the letter. No response was received. Accordingly, the Board finds that any request for a Board hearing has been withdrawn and will proceed to conduct its appellate review based on the evidence of record. The veteran's disability rating for her service-connected seizure disorder was increased to 20 percent by way of a rating decision dated in October 1997. The effective date of the increase was May 20, 1997. This change in the disability rating was reflected on rating decisions dated in May 1998 and February 2002. However, beginning with a rating decision dated in July 2004, the RO has only shown the veteran's seizure disorder rated at the 10 percent level, effective from July 19, 1991. The RO should review the ratings decisions issued subsequent to February 2002 to ensure that the proper disability rating and effective date are shown. FINDINGS OF FACT 1. The veteran was placed on the Temporary Disability Retirement List (TDRL) effective December 1, 1987. The veteran's military disability was post-traumatic headaches and syncope associated with mild memory deficits. 2. The veteran submitted her initial claim for VA disability compensation in September 1987, while still on active duty. 3. The veteran was granted service connection for post- traumatic headaches in January 1988, effective from December 1, 1987. A 30 percent rating was assigned. The rating was increased to 50 percent in March 1989, effective from October 12, 1988. 4. The veteran was granted service connection for a seizure disorder, by way of a rating decision dated in July 1992. She was assigned a 10 percent disability rating from July 2, 1991. 5. The RO found clear and unmistakable error in the July 1992 rating decision in November 2005. The effective date for service connection and a 10 percent rating for a seizure disorder was established as December 1, 1987. Her combined service-connected disability rating was 40 percent as of December 1, 1987, and 60 percent as of October 12, 1988. 6. The veteran applied for Social Security Administration (SSA) disability in August 1994. She reported her post- service employment to SSA from 1990 to 1993. 7. The veteran was granted entitlement to SSA disability benefits from October 10, 1993. 8. The veteran submitted her formal claim for a TDIU rating on May 20, 1997. 9. The veteran's service-connected disabilities, as of May 20, 1997, consisted of post-traumatic headaches with memory deficits and organic personality disorder, evaluated as 50 percent disabling, and a seizure disorder, evaluated as 10 percent disabling. Her combined service-connected disability rating was 60 percent. 10. The veteran's disability rating for her seizure disorder was increased to 20 percent, effective from May 20, 1997. 11. The veteran was granted entitlement to a TDIU rating in May 1998, effective from May 20, 1997. The effective date was amended to January 1, 1994, in July 2004. 12. The veteran's service-connected disabilities were not of such a nature and severity to require consideration of an extraschedular rating and were not such as to prevent her from securing or following a substantially gainful occupation prior to January 1, 1994. CONCLUSION OF LAW The criteria for entitlement to TDIU benefits for any period prior to January 1, 1994, are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.340, 3.341, 3.400, 4.16 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require 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. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran's claim was received prior to the enactment of the VCAA. Her claim was substantiated in May 1998 when she was granted entitlement to a TDIU rating and assigned an effective date. The veteran expressed disagreement with the effective date of the grant and was issued a statement of the case (SOC) in that regard in February 1999. She appealed the decision in April 1999. Thus her appeal was perfected prior to the requirement to provide the notice as directed by the VCAA. The Board previously denied the veteran's claim in September 2002. The veteran appealed. The decision was vacated and remanded based on the Court's granting of a Joint Motion. The Joint Motion was based entirely on the argument that the VCAA notice in the case was deficient. Based on existing law, the Court granted the motion in June 2003. The Board remanded the case for VCAA notice in March 2004. The RO wrote to the veteran in May 2004. The letter essentially asked the veteran to submit any pertinent evidence she had in her possession, informed her of the evidence required to substantiate her claim, the information required from her to enable VA to obtain evidence on her behalf, the assistance that VA would provide to obtain evidence on her behalf, and that she should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on her behalf. The veteran did not respond to the letter. The RO issued a rating decision that was partial grant of benefits sought on appeal in July 2004. A supplemental statement of the case (SSOC) was afforded the veteran that same month. Notice of the rating action was provided in September 2004. The veteran has not alleged that she has been prejudiced by the lack of notice of how to establish an earlier effective date in his case. Further, she has been represented by an attorney before VA from 2003 to the present. She also has been represented by that attorney before the Court since 2002. The veteran, through her attorney, has presented argument for why she is entitled to an earlier effective date. Any deficiency in the notice required to establish an earlier effective date is overcome by the fact of the veteran's actual knowledge of what evidence is necessary to substantiate the claim, what VA is responsible for and what she is responsible for in support of her claim. Further, the veteran has submitted evidence in her possession. There is no prejudice to the veteran in this case on the basis of the lack of VCAA notice. Finally, as noted, the veteran's claim was substantiated in May 1998. As a result, the section 5103(a) notice had served its purpose and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). All available evidence pertaining to the veteran's claim has been obtained. The claims folder contains the veteran's service medical records, private and VA medical records, VA examination reports, statements and records submitted by the veteran, a medical opinion submitted by the veteran, and a Central Office hearing transcript. The case has been remanded on several occasions to allow for additional development of the record and the veteran has submitted additional evidence/argument on those occasions. The Board finds that VA has satisfied its duty to notify and assist. All obtainable evidence identified by the veteran relative to her claim, with the exception of a wage and earning statement from the SSA which is discussed infra, has been obtained and associated with the claims folder, and she has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. I. Background The veteran served on active duty from September 10, 1985, to November 30, 1987. She was placed on the Temporary Disability Retirement List (TDRL) at that time, effective December 1, 1987. A review of her service medical records (SMRs) shows that she suffered a laceration to the top of her head on March 8, 1986. An emergency room treatment report from Burlington County Memorial Hospital recorded that the injury occurred at 1:15 a.m. and that the veteran was being seen as of 1:56 a.m. The nurse's notes report that the veteran struck her head when she was running under a truck trying to get water to put out a fire in the motor of the truck. There was no complaint other than the head injury with laceration. The physician's note described the laceration as being approximately 18 centimeters (cm) in length and down to the skull bone. The veteran denied any loss of consciousness. It is clear from the entry that there was no evidence of "blast" injuries from an explosion. Moreover, no such injuries were reported by the veteran. The veteran was seen three days later at an Army clinic with complaints of headaches and having fainted the day before. The assessment was status post laceration of the skull and muscle tension cephalgia. She continued to be seen with complaints of headaches in March and April 1986. The assessment became post-concussion/post-traumatic headaches. A community mental health note from April 30, 1986, said that the veteran was being evaluated for use of alcohol with her strong medications. The veteran said that she injured her head when she jumped under another vehicle to get away from a burning van. She said that she had had severe headaches daily since the injury. The veteran said that she wanted to stay in the service and had plans to marry her boyfriend who was a drill sergeant. The veteran had an abnormal electroencephalogram (EEG) in May 1986. The report noted that the abnormal activity was frequently seen following head trauma, even in the absence of clinical seizure activity. Skull x-rays from that time were reported as normal. The veteran was seen in early June 1986 after she passed out while brushing her teeth. The assessment was vasovagal syncope secondary to headaches. Another entry, from late June 1986, reported that the veteran continued to have post-traumatic headaches with an abnormal EEG but a normal computed tomography (CT) scan of the head. There were no neurological deficits noted. The veteran's complaints of headaches continued and she was referred to Walter Reed Army Medical Center (WRAMC) for evaluation. The veteran was removed from her primary military occupational specialty as a cook in June 1986. She was given a trial period as a clerical worker. The veteran was evaluated as an inpatient at WRAMC from July to September 1986. An initial consult provided an impression of post-concussive syndrome. A handwritten narrative summary for that period noted the history of the veteran striking her head while running to avoid a vehicle on fire. She had a syncopal episode the next day. She also developed headaches. The veteran received treatment for her headaches and several consults for evaluation. She was returned to her unit for a trial of duty in September 1986. The trial was unsuccessful as the veteran continued to have headaches that interfered with her duties. She was again evaluated at WRAMC. The veteran had a mildly abnormal EEG in January 1987. The report noted that the infrequent bursts of sharp and slow activity was a nonspecific pattern, and could be seen in a variety of clinical conditions, including migraines. A January 1987 psychiatric consult noted that pharmacological management was limited secondary to the veteran being pregnant. Hypnosis was considered a possible therapy. It was recommended that the veteran be evaluated for continued service. The mental status examination was said to be unremarkable with no suggestion of cognitive, depressive, or thought disorder. Psychological testing done in February 1987 was interpreted to show post concussion syndrome with mild deficits in recent memory functions. There was no Axis II diagnosis. The Board notes that the veteran was also seen at her parent unit in New Jersey in October 1986. She complained of pain in the right knee area. A bunk had fallen over and struck her behind the right knee. She was seen on several other occasions for continued complaints of right leg pain. The veteran underwent medical evaluation board (MEB) processing in March 1987. The diagnosis was post-traumatic headaches. It was determined that the veteran was unfit for duty and that her case be referred to the Physical Evaluation Board (PEB). The PEB originally considered the case in May 1987. The determination at that time was that the veteran's headaches made her unfit for further duty and that she should be separated from service with severance pay. The PEB recommended a disability percentage of 10 percent. The PEB reconsidered its decision in June 1987. The reconsideration was based on an addendum to the MEB report that added a diagnosis of "periods of syncope, etiology undetermined, seizure disorder unlikely, but possible with EEG evidence suggesting irritability, which may be seen following head trauma; however, there is no EEG evidence of a definitive seizure disorder." The veteran was said to be presently socially and industrially debilitated by the frequent occurrence of her blackouts and headaches, as well as a mild decrease in her cognitive functioning. The reconsidered decision recommended that the veteran be placed on the TDRL for a disability of post-traumatic headaches and syncope associated with mild memory deficits. A 30 percent disability rating was recommended. The findings of the reconsidered PEB decision were approved and the veteran was placed on the TDRL. The veteran submitted a preliminary claim that was received in September 1987, prior to her temporary retirement. She listed left leg numbness as an issue and referred the reader to her medical records and board proceedings as to other issues. She also listed her son as a dependent. His date of birth was noted to be in September 1987. The veteran later submitted a copy of a certification that her son was born at WRAMC in September 1987. The RO issued a rating decision that granted service connection for post-traumatic headaches in January 1988. The veteran was awarded a 30 percent disability rating effective from December 1, 1987, the day after her temporary retirement from service. The veteran submitted another claim that was received in January 1988. She listed head trauma, seizure disorder, and post-traumatic headaches as the issues involved. She specifically lined out the portion of the claims form that needed to be completed if she considered herself to be totally disabled. The veteran submitted a claim for service connection that was received on October 12, 1988. She said that she had been experiencing problems with her left leg. She said she did not know if this was attributable as a residual to her head injury or whether it was related to the Caesarean section she had in service. She did not report any increase in the severity of her headaches and/or seizures. The veteran was afforded a VA examination in December 1988. As part of the examination, she provided preliminary information on a VA Form 21-2545, Report of Medical Examination for Disability Evaluation. The veteran listed "none" in the section for identifying an employer. The Board notes that the examination report contains the first instance where the events surrounding the veteran's head injury were misreported. The psychiatric examiner recorded a history of the veteran sustaining a head injury when she was hit in the head by a piece of metal from an exploding van. [As shown supra, there is no evidence of such an injury.] The veteran reported that she was consistently plagued by the occurrence of several things to include blackouts where she would lose control of herself and fall to the ground. She had headaches that occurred almost daily or every other day. She also had changes in her sleep pattern where she could go without sleep for several days in a row. The examiner summarized the veteran's status as one with a history of one to two years of a post-head injury state in which recent memory suffered, there was irritability and explosive temperament prevailed with difficulty in controlling emotions. On her general medical examination the veteran reported having sustained a skull fracture. There is no evidence of this in the SMRs. The veteran was x-rayed and studied by CT scan with no evidence of a skull fracture in service. The veteran reported having blackouts off and on over the last two years. She also said that she had headaches almost every day. Neither examiner recorded information about the veteran's employment status. The veteran did not provide any statements as to her ability to work. The veteran submitted a statement in February 1989. She asked for an update regarding her left leg claim. The RO denied service connection for a sensory deficit of the left lateral thigh by way of a rating decision dated in March 1989. The veteran's disability rating for her headaches was increased to 50 percent from the date of her claim, October 12, 1988. The RO also change the characterization of the disability to be post-traumatic headaches with memory deficits, organic personality disorder. Notice of the rating action was provided in March 1989. The veteran submitted a claim to add her son to her disability compensation award in April 1989. There was an initial miscommunication as to when her son was added to her award. The veteran submitted a statement in July 1989 wherein she noted she had listed her son on her claim that was received in January 1988. The RO wrote to her in August 1989. It was noted that her son was added to her award effective from January 1, 1988. The veteran asked the RO to provide her a copy of the award letter that added her son. She also stated that she did not recall receiving any retroactive payments for her son. She asked for an audit of her payments. The audit was conducted and the veteran was advised of an additional payment that was made to her bank account in October 1989. The veteran attempted to add her husband to her award in July 1990. The RO wrote to her several times to get additional information but did not receive a reply. Her claim was disallowed, pending the necessary information, in March 1991. The veteran later submitted evidence to show she was married in March 1990. The veteran submitted a claim for an increased rating for her service-connected disability that was received on July 19, 1991. The veteran said that she suffered from several types of epilepsy and dyslexia. She also said that she had recently recovered from a Demerol dependency. She also said that she had migraine headaches. She did not address whether she was employed or not. The veteran submitted a statement in regard to adding her husband to her disability award in August 1991. At the time she listed a change of address, from Albany, New York, to Worcester, Massachusetts, on the VA Form 21-4138. Associated with the claims folder are VA treatment records for the period from August 1988 to July 1991. The veteran was seen on a neurology consult in August 1988. The examiner stated they obtained a history from documents presented by the veteran. They indicated that she was injured when she was standing next to a van that exploded (again, there is no objective evidence of this event) and suffered a head injury. The veteran reported experiencing pain in the head that was paroxysmal, bilateral, and involved the forehead. She would seek out dark and quiet. The veteran said that she could not work properly around the house when she had the pain. The impression was vascular headache of peculiar origin. The examiner wanted a CT scan and an EEG and a return visit. An EEG from November 1988 was reported to show alterations over the posterior middle areas. These were said to be similar to those seen on a previous record from August 1988. The report said some of the sharp transients present in the record may well represent epileptiform patterns but it was difficult to determine with certainty. The veteran was also seen as an outpatient for her headaches in December 1988. She was noted to be unemployed at that time. The veteran was seen again in the neurology clinic in March 1990. The veteran was said to have a normal neurological examination. An entry from April 1991 noted that the veteran was seen for a viral syndrome. Her occupation was noted as housewife. A CT scan of the head showed no evidence of a skull fracture in May 1991. The veteran was an inpatient for treatment from May to June 1991. Her primary treatment was for severe alcohol dependence. Other diagnoses were organic personality disorder and traumatic brain disease and epilepsy. The veteran was noted to be unemployed and with a five year history of problem drinking. The veteran said she had been experiencing blackouts but was not sure if they were related to her drinking or her head injury. The veteran gave a history of being injured in a car explosion. She said she was given cardiopulmonary resuscitation on the scene of the explosion. EEGs from May and June 1991 were said to be abnormal. A history taken on admission noted that the veteran was a housewife. It also noted that she had tried working as parking attendant for six months. On discharge the veteran was deemed competent to handle VA funds. The veteran submitted a statement from S. D. in November 1991. Ms. D. related how she had known the veteran for "awhile now" and had observed her to have several seizures in 1991. The first was in April with others witnessed in May, June and July. She also found the veteran in bed after having what appeared to be a seizure in August. She noted that the veteran was having a lot of stress because of her relationship with her husband. The veteran was afforded a VA examination in February 1992. The veteran reported taking Tegretol for her seizures. She said she had seizures, normally in her sleep, and had about two seizures per month. She also complained of having headaches all of the time but was not taking any medication for the headaches. The veteran said that she had memory difficulties such as putting food in the oven. She also said that she had difficulty in comprehending written material and problems with long-term memory. The veteran reported being fatigued all of the time and had to take naps. She said that she was not working and spent her waking time caring for her child. The impression was post-traumatic headaches, personality disturbance and seizure disorder, accompanied by such specific cognitive deficits that affect memory and reading. The veteran was granted service connection for a seizure disorder by way of a rating decision dated in July 1992. She was awarded a 10 percent rating. The effective date for the grant of service connection and the 10 percent rating was as of July 2, 1991. (The Board notes that the veteran's claim was received on July 19, 1991, but was dated July 2, 1991. The latter date appears to be the date used by the RO for the effective date.) The veteran's combined service-connected disability rating was now 60 percent. Finally, the rating decision noted that a future examination would be scheduled in February 1994. [The Board notes that the effective date for the grant of service connection and the assignment of a 10 percent rating was amended to July 19, 1991, by way of a rating decision dated in July 2004. However, the change made no difference in the veteran's compensation as her payments were based on the beginning of the next month. See 38 C.F.R. § 3.31 (2006)]. The veteran was afforded a VA examination in April 1994. The veteran said she continued to have seizures with variable frequency. In recent months her seizures had been primarily nocturnal. She said she had her last daytime seizure, with incontinence, approximately one month earlier. The veteran said the majority of her nocturnal seizures involved tongue biting. She also complained of severe headaches. They were described as a pulsating on the left side of the head and were associated with nausea and vomiting. The examiner provided initial diagnoses of post-traumatic seizure disorder and post-traumatic headache. The examiner provided an addendum after a review of the veteran's records. The examiner stated that the records showed the veteran had had considerable treatment for a seizure disorder, alcoholism and on several occasions had EEGs that showed sharp waves either on the left side or bilaterally in the temporal region. He said these were consistent with the diagnosis of seizure disorder. The examiner said the veteran also had a long history of heavy alcohol intake for which she was receiving care at the Worchester [VA] clinic. The final diagnoses were post-traumatic epilepsy, post-traumatic headache, and alcohol abuse. The RO issued a rating decision that continued the veteran's disability rating at the 50 percent level for her service- connected post-traumatic headaches with memory deficit, and organic personality disorder in June 1994. Notice of the rating action was provided in July 1994. The veteran submitted a form to the RO authorizing release of her VA information to the Social Security Administration (SSA) in September 1994. A request for VA records was received from the Executive Offices of Human Services, Massachusetts Disability Commission in October 1994. The request was for medical records for the veteran. The records were provided in November 1994. The veteran submitted a formal claim for a TDIU rating, via a VA Form 21-8940, that was received by the RO on May 20, 1997. The veteran reported that her service-connected disabilities affected her full time employment as "about 3-4 years ago." She also reported that she was unsure as to when she last worked full time, thinking it was also "3-4 years ago." The veteran reported she had started receiving SSA benefits. The only employment listed by the veteran was for a hot dog shop where she worked 15 hours a week. She listed only a beginning date of employment of 1993. She said that she lost considerable time from work. She said she left her last employment because of her service-connected disabilities. The veteran also submitted copies of VA treatment records for the period from May 1993 to May 1997. The records reflect treatment for prurigo nodularis a contusion to the right knee, and a refill of allergy medication. The veteran was afforded a VA neurology examination in July 1997. The veteran said that she continued to experience seizures but they were mostly nocturnal. She said she would wake up after a seizure and find she had urinated, bitten her cheek, and until she had bought a waterbed, fallen out of bed. Her last seizure was approximately two weeks earlier. The veteran said she had the nocturnal seizures on a regular basis. She took Tegretol for her seizures. The examiner noted that a CT scan of the brain from May 1991 was normal. However, an EEG from that time was abnormal. The veteran also said she had daily headaches that were associated with vomiting on a regular basis. She took Darvocet for her headaches. The veteran reported it was difficult for her to fall asleep. The veteran denied any regular alcohol use. The veteran reported having difficulty in comprehending written language. She would also occasionally have difficulty in naming an object. The veteran said she did not leave her home unless she was accompanied by another party. The veteran was not under any active psychiatric management. The examiner stated that the veteran was able to communicate with no obvious paraphasic disorder. The impression was traumatic seizure disorder, traumatic organic brain syndrome, chronic post- traumatic headaches, and sleep disturbance and behavioral disorder manifested by difficulty in leaving her home. The RO issued a rating decision in October 1997. The decision continued the rating for the veteran's headaches at the 50 percent level. The veteran's disability rating for her seizure disorder was increased to 20 percent, effective from the date of the TDIU claim, May 20, 1997. The RO deferred a decision on entitlement to a TDIU rating. VA treatment records for the period from July 1996 to April 1998 reflect that the veteran was prescribed medication over the phone for what she said was a migraine headache of 4 days duration in December 1997. The veteran's SSA records were received in April 1998. Of note, the veteran was determined to be entitled to disability benefits effective October 10, 1993, in August 1996. The primary disability was listed as organic mental disorders and the secondary disability was listed as anxiety related disorders. The Board notes that there was a date of March 6, 1986, originally listed for the date the disability began. This was lined out and the October 1993 date inserted. The March 1986 date corresponds to the approximate date of the veteran's injury in service. The records also include a work history provided by the veteran as part of her claim for SSA benefits that was submitted in August 1994. The veteran noted her service and that her primary job was a cook. She listed employment with the military to October 1987. She reported work as a driver for an auto auction from 1990 to 1991. She said that she worked five days a week and earned $7 per hour. She next worked as a cook at a nursing home from September 1991 to June 1992. This was also for five days a week and she earned $7.50 per hour. The veteran's last employment was as a short-order cook for a "family owned restaurant" from August 1992 to October 1993. She reported that she worked three to six days per week and made $6.75 an hour. The veteran noted the training she had as a cook in service and her various job requirements at that time. She noted that she was unable to use her cook/management skills on a long- term basis because people were reluctant to hire her due to his epileptic condition that she termed as an insurance liability. Medical records from SSA include records from St. Vincent's Hospital in Worcester, Massachusetts, for the period from June 1992 to August 1993. The veteran was seen for an injury to her right big toe in June 1992. She was noted to be employed as a cook. In August 1992 the veteran was seen after having had a seizure at home. The veteran had been drinking before her seizure. She was still noted as employed as a cook. The veteran was treated again in October 1992. She had been involved in a motor vehicle accident (MVA) where she was the driver of her car. The veteran's car was stationary when it was struck by another vehicle. She struck her left side, including her head, as a result of the collision. The veteran was seen for seizure activity in April 1993. The records noted that the veteran was a heavy drinker and that she had stopped taking her Tegretol approximately two months earlier. No occupation was listed on the main record. She was seen again for seizure activity in July 1993. She was noted to be noncompliant with her medications. The veteran was seen for an abdominal wall contusion from a refrigerator falling on her in August 1993. The Board notes that no occupation was listed on the main record sheet for the July and August 1993 treatments. Physical therapy records, beginning in December 1992, noted that the veteran was employed. Her job duties included standing for 4 hours straight, some bending, lifting, and reaching. She had complaints of pain involving her cervical and lumbar spine as a result of the MVA in October 1992. She had additional physical therapy for residuals of the MVA in July 1993. She complained of pain in the lumbosacral area. She also said that she had difficulty lifting heavy objects at work. She was able to do all of her housework but had increased pain. The veteran was seen into August 1993 when attempts to reach her were unsuccessful. Records from Adcare Hospital, for the period from April to May 1993, show that the veteran was admitted for detoxification. Her alcohol use was noted in the April 1993 records from St. Vincent's. The records noted the veteran's seizure disorder and that she complained of headaches that were bi-temporal. They were occasionally 'on" the back of her neck with nausea and vomiting. The veteran said she had them off and on and that vodka helped with them. The veteran denied any other medical problems. She was noted to live alone below her family. The diagnoses were alcohol dependence, seizure disorder, and question of major depression. VA treatment records for the period from May 1993 to November 1993 show that the veteran was seen in the mental health clinic on several occasions. In May 1993 the veteran gave a history of being injured in service when a van caught fire and exploded. The veteran said she had trouble holding on to jobs for longer than 4 months because she would either quit or be fired for being out a lot due to her migraine headaches. The veteran reported she had moved from New York to Massachusetts a year ago (May 1992) to be with friends. She lived with her 5 year-old son in a large apartment. She said the father of her son was in the service with her but she never asked for child support. The veteran was seen for alcohol dependency in Jun 1993. At that time she told the examiner that she sustained a compound skull fracture when she injured in service and treated at WRAMC for 17 months. She said she began drinking after the accident and used alcohol to calm herself. Of record is a biopsychosocial assessment that was begun in October 1993. The veteran reported that she was presently unemployed. The veteran provided information regarding her accident in service and said she fractured her neck, knee and fingers and had broken ribs. She also said she was in a coma for the first few months after the accident. The veteran underwent a psychological evaluation by M. Taylor, Ph.D., in November 1994. The veteran's work history was noted, and is essentially the same as reported by her supra. She said she had to discontinue working at the restaurant in October 1993 because of her physical problems, characterized as migraine headaches and seizures. The examiner said she was cognitively capable of performing a full range of activities of daily living but her physical problems were somewhat limiting. The diagnoses were mixed substance abuse, continuous (alcohol and prescription drugs), post-traumatic stress disorder (PTSD), organic personality syndrome, migraine headaches, by history, and seizure disorder, by history. The examiner opined that the veteran could not handle the physical and mental demands of an ordinary work assignment because of the severity of the diagnoses provided. He said the veteran was barely able to perform routine daily activities and was somewhat dependent on her male friend and roommate to assist her with parenting responsibilities and performing household chores. Additional VA records through July 1996 did not provide any additional pertinent information regarding the veteran's employments status prior to October 1993. The veteran underwent a psychological evaluation by T. D. Horton, Ph.D., in September 1996. The veteran reported that the "DDS" personnel had listed her disabling condition as alcoholism. She felt she was unable to work because of seizures, headaches, and a sleep disorder. The examiner noted that the veteran struggled to recall specific historical information, such as dates of her most recent employment. The veteran said she suffered a head injury in service because of an ammunition explosion. She said she had a fractured skull, and had back and leg injuries with numbness that continued in her left leg. The veteran said she most recently worked in the early 1990's when she was employed for a year as a cook. She said the job ended because of her frequent absences due to illness. The veteran reported that she had not been involved in a steady relationship for many years. She told the examiner that the father of her child was killed in the same explosion where she was injured. This statement is in contrast to an earlier statement where the veteran indicated the father of her son was alive and she chose not to pursue child support. Moreover, the veteran's accident was in March 1986 and her son was born in September 1987. Thus, it is unlikely that the father of her son was killed in an explosion in March 1986. Dr. Horton conducted a number of psychological tests. He concluded that the veteran had a complex diagnostic picture that included the use of multiple medications, partially controlled seizures, disturbed sleep patterns, and poor recall for historical information that he said was all secondary to severe head trauma. The examiner said the veteran met the diagnostic criteria for nicotine dependence and amnesic disorder due to severe head trauma. He said she also probably met the criteria for an anxiety disorder and sleep disorder. He said that test findings were consistent with the presence of language deficit. Finally, the examiner stated that the veteran's capacity to manage work setting demands, the presence of language impairment, memory impairment, sleep disorder, and anxiety disorder would make it exceptionally difficult for her to manage the demands of most employment settings. The veteran was also evaluated by B. O'Sullivan, M.D., in October 1996. He noted that substance abuse was not a current contributing factor. He said that it appeared that the veteran had lost considerable intellectual ability secondary to her head trauma and would need an unusual amount of extra supervision to compensate for her deficiencies. The RO granted entitlement to a TDIU rating, and entitlement to Dependents; Educational Assistance (DEA) in May 1998. The effective date for the grant of benefits was established as of the date of claim, May 20, 1997. The veteran submitted her notice of disagreement with the effective date for her TDIU rating in January 1999. The veteran said that she originally filed her claim in 1991 and she had not been able to work since that time. The veteran submitted her substantive appeal in April 1999. She contended that the effective date for her TDIU rating should go back to the date she got out of service. The veteran submitted a statement asserting she should be considered "100% permanent and total disability." She said she had not been working for the last 5-6 years. She also said she would like back pay for the total years she had not been employed. The Board issued a decision that denied the veteran's claim for entitlement to an earlier effective date than May 20, 1997, for her TDIU rating in September 2002. The Board noted that the veteran met the schedular criteria for consideration of a TDIU rating at the time she submitted an increased rating claim in July 1991. However, there was not evidence of record to demonstrate her unemployability because of her service-connected disabilities. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The veteran's attorney and VA's General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision. The Joint Motion was limited to the Board not providing an adequate statement of reasons or bases for its determination that the veteran had been provided with adequate VCAA notice. The Court granted the Joint Motion for remand in June 2003 and returned the case to the Board. The Board wrote to the veteran in September 2003. She was advised that the case was returned to the Board by the Court. She was further advised that she had 90 days to submit additional evidence or argument in support of her claim. The veteran's attorney requested an extension of time to submit additional evidence and was granted the extension in January 2004. The veteran, through her attorney, submitted additional argument and evidence in January 2004. The evidence included a medical opinion from C. N. Bash, M.D., dated in January 2004. The attorney argued that the veteran should be entitled to an effective date for her TDIU rating of January 22, 1988. He stated that this was the veteran's initial application for VA disability compensation. He noted that the veteran was noted to be unemployed at the time of a VA examination in December 1988. It was also noted that a discharge summary from June 1991 reported that the veteran was unemployed. The attorney specifically referenced a letter from the RO that provided notice of the July 1992 rating decision. The reference was that the RO did not inform the veteran that she had been denied a TDIU rating at that time. Dr. Bash said that he was offering a medical opinion regarding the veteran's ability to work in light of her brain injury and seizure disorder. He said he had reviewed the claims folder which included her SMRs, post-service medical records, lay and physician statements, and a medical literature review. Dr. Bash stated that it was his opinion that the veteran's in-service head injury was causing her current chronic seizure disorder and mental deficits. He further stated that: It is my opinion that this patient's mental deficits caused by her in- service head injury has made her unemployable since she left service in 1987 because she has not been able to perform or maintain employment in her area of training, she has been deemed unemployable by the social security administration [sic], she has had several VA and non VA physicians state that she is not able to be employed, she has had little if any taxable income since she left military service in 1987 and she has had persistently abnormal EEGs which show recurrent seizure activity. Dr. Bash went on to cite to certain "facts" from the record to support his opinions. However, his "facts" were not always attributed to the correct source and/or date. Of note Dr. Bash attempts to show that his first paragraph of facts is related to an event of April 20, 1988, a period after the veteran's service, when it is actually a restatement of several medical entries, from various dates, that have been tied together. The information is taken directly from the veteran's MEB in service and reflects her status at that time. The "quotes" used by Dr. Bash are entirely from the veteran's SMRs. The statement about the veteran being unable to work three to five days a week was a reference to a trial as a clerical worker during service but the noise was too much for her. The November 1994 finding by Dr. Taylor is included in the SSA records and served as a basis for the SSA determination that the veteran was unable to work from October 1993. One incorrect fact that has been reported in numerous evaluations, to include that of Dr. Bash, is that the veteran was an inpatient for 17 months at WRAMC. That is not the case. She was an inpatient for approximately three months in 1986 and again for several months in 1987 prior to her placement on the TDRL. The statement of her period of hospitalization is meant to convey that her injury required a 17 month period of hospitalization for treatment and that is not the case. Without minimizing the serious nature of the veteran's head injury, it must be said that her hospitalization was for assessing her complaints, beginning several months after her accident and not because she required inpatient treatment for the initial injury. The Board remanded the case for the RO to provide the required VCAA notice in March 2004. This was to comply with the requirements of the CAVC order that granted the Joint Motion. The RO issued the notice by way of a letter dated in May 2004. The RO issued a rating decision that established an earlier effective date for the veteran's TDIU rating in July 2004. The effective date was established as of January 1, 1994. The decision noted that the veteran reported that she was not working at the time of her VA examination in February 1992 and that a TDIU claim should have been invited at that time. The decision further advised that an earlier effective date could not be established because the veteran had reported her work history inconsistently. She was told that if she submitted a detailed statement with regard to her work history and income from July 19, 1991, to January 1, 1994, the effective date issue would be reconsidered. The veteran was issued a supplemental statement of the case (SSOC) in July 2004. The SSOC discussed the evidence added to the record and the basis for the decision to partially grant the veteran's claim on appeal. The veteran's attorney submitted additional argument in November 2004. The attorney challenged the legal sufficiency of the SSOC and stated that the RO failed to consider the legal argument he submitted and the opinion of Dr. Bash. The attorney is incorrect. The SSOC clearly acknowledges receipt of the January 2004 submission, to include the legal argument and medical opinion. The medical opinion is specifically addressed in the SSOC. It was also argued that the RO failed to adjudicate a claim for service connection for a seizure disorder from January 1988. The attorney contended that an extraschedular rating should have been considered in adjudicating the veteran's TDIU claim. The attorney referred to the RO's instructions regarding employment and income information from July 1991 in order to reconsider the effective date. The attorney asserted that the veteran was involved in a traumatic vehicle explosion in service that left her barely alive and able to function. The Board must address this assertion as it is clearly inapposite to the evidence of record. The hospital records for the time of the veteran's head injury are of record as well as the immediately succeeding SMRs. There is no evidence of any threat to the veteran's life in regard to her head injury at any time. The attorney also contended that VA had a duty to obtain a wage and earnings statement from the SSA to document the veteran's earnings. The attorney presented oral argument before the undersigned in March 2005. The hearing was scheduled to afford the veteran an opportunity to testify but she did not appear. The attorney contended that the veteran's annotation that she was not employed on a VA Form 2507 [sic], it was a VA Form 21-2545, in December 1988 constituted an informal TDIU claim. He also noted that a VA discharge summary from June 1991 also reported the veteran as unemployed. The representative referred to the opinion from Dr. Bash and the veteran's low earnings after service. He did not identify the evidence to support his contention of low earnings. The argument was again raised that the veteran should be granted service connection for a seizure disorder based on a claim from January 1988. The Board remanded the case again in April 2005. The Board referred the issue of entitlement to an earlier effective date for the grant of service connection for a seizure disorder. It was determined that the issue was inextricably intertwined with the issue of an earlier effective date for the TDIU issue. The RO was also to request the veteran to either provide a copy of her wage and earnings statement or authorize the RO to obtain one for her. The RO wrote to the veteran in May 2005. She was asked to provide a copy of her SSA wage and earnings statement or to authorize the RO to obtain the statement on her behalf. The RO also denied entitlement to an earlier effective date for service connection for a seizure disorder in May 2005. The veteran's attorney requested that the RO obtain a copy of the veteran's SSA wage and earnings statement in May 2005. He also requested that the RO provide him with a copy of the statement. The RO issued a rating decision that established an earlier effective date for service connection for the veteran's seizure disorder in November 2005. The effective date for service connection was established as the day after the veteran's temporary retirement from service, December 1, 1987. The RO also established a 10 percent rating for the seizure disorder from that date. The change in effective date was based on a finding of clear and unmistakable error in the rating decision of July 1992. This determination meant that the veteran's combined service- connected disability compensation was 40 percent as of December 1, 1987, and 60 percent as of October 12, 1988. The RO issued a SSOC on the earlier effective date for the TDIU issue in November 2005. The RO noted that the veteran had not provided evidence of her earnings and had not provided authorization for the RO to request information about the earnings. The veteran provided a signed authorization for the RO to obtain information regarding her wages and earnings from the SSA in December 2005. In a separate submission, also dated in December 2005, the veteran's attorney cited the language used by the MEB that the veteran was socially and industrially debilitated. He argued that this finding and the fact that the veteran was unemployed raised a claim for TDIU when she was retired. Associated with the claims folder is a Report of Contact (ROC) dated in February 2006. The ROC noted a conversation between an RO employee and a contact at SSA regarding the veteran's wage and earnings statement. The SSA contact advised that the veteran should be provided with SSA Form 7050 so that she could provide the necessary information and authorization to obtain the requested records. The RO forwarded a copy of the form by way of a letter dated in February 2006. The veteran was informed that her prior authorization for the SSA records had expired. The veteran was asked to complete the form to allow the RO to obtain her records. She was also asked to advise the RO if she sent the form directly to the SSA. Finally, the RO advised that if no response was received from the veteran within 60 days, her claim would be reviewed based on the evidence of record. The veteran's attorney responded to the RO in March 2006. He acknowledged receipt of the RO's letter transmitting the records request. He disputed the need for the use of the form to obtain the wage and earnings statement. He contended it was within the RO's duty to assist to obtain the statement. He added a paragraph asking for the RO to explain its policy on requesting SSA records. Finally, the attorney noted the change in effective date for service connection for a seizure disorder but questioned what disability rating was in effect from December 1, 1987. The RO wrote to the veteran in April 2006. The RO noted that the veteran had not submitted the completed form to allow for the request of her SSA wage and earnings statement. The letter again informed the veteran of the need for the use of the form and that the necessary information could not be obtained without her consent. The veteran was informed that the RO would wait until May 10, 2006, before deciding her case on the evidence of record. The veteran did not respond to the RO's letter. The RO issued a SSOC in May 2006. The SSOC listed the exchange of correspondence and prior authorization received from the veteran. The SSOC also noted that the veteran failed to respond to the RO's request for her to complete the form or submit the statement on her own. The veteran's attorney wrote to the RO in May 2006. He asked that the veteran's appeal be forwarded to the Board. He also asked the RO to clarify what disability rating was in effect for a seizure disorder from December 1, 1987, to July 2, 1991. The RO responded in June 2006. The RO informed the veteran, through her attorney, that she was granted service connection for a seizure disorder, with a 10 percent rating, effective from December 1, 1987. It was noted that this brought the veteran's combined disability rating to 40 percent as of that date. The letter wrongly advised that the veteran's disability rating for her seizure disorder continued at the 10 percent rating. Her disability rating for a seizure disorder was increased to 20 percent in October 1997, effective from May 20, 1997. II. Analysis Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 as 60 percent or more, and that, 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. 38 C.F.R. § 4.16(a) (2006). The regulation also provides that, for the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. Id. The veteran's service-connected disabilities result from a single accident. Further, it is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans unemployable by reason of service-connected disabilities, but who fail to meet the standards set forth in paragraph (a) of 38 C.F.R. § 4.16. See 38 C.F.R. § 4.16(b) (2006) (emphasis added); see also 38 C.F.R. §§ 3.340, 3.341 (2006). The effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2)(West 2002); 38 C.F.R. § 3.400(o) (2006); Harper v. Brown, 10 Vet. App. 125 (1997). Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2006). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a) (2006). Under some circumstances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(1) (2006). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court addressed the issue of entitlement to an earlier effective date in a TDIU claim and pointed out that the applicable statutory and regulatory provisions, properly construed, require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a) (2006); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In a pertinent precedent decision, the VA Office of General Counsel (hereinafter referred to as "GC") explored the legislative history of 38 U.S.C.A. § 5110(b)(2) and noted that this provision was added in order to permit retroactive payment of increased compensation from the date of the increase in disability up to 1 year, when that date is ascertainable, and was intended by Congress to provide additional disability compensation up to 1 year retroactive to the date on which the event establishing entitlement to additional benefits occurred, i.e., the date on which the increase in disability occurred. See VAOPGCPREC 12-98. With regard to the regulatory history of 38 C.F.R. § 3.400(o)(2), the GC noted that this section was added to permit payment of increased disability compensation retroactively to the date the evidence established the increase in the degree of disability had occurred, and that it was intended to be applied in those instances where the date of increased disablement could be factually ascertained with a degree of certainty, and was not intended to cover situations where there was no evidence of entitlement to an increased evaluation prior to the date of the claim. The GC concluded that, where a veteran submitted a claim alleging an increase in disability within 1 year prior to the VA's receipt of the claim and medical evidence subsequently substantiated the increase in disability, the effective date of the award of increased disability compensation was the date as of which it was ascertainable, based on all the evidence of record, that the increase occurred. The Court has held that a total rating based upon individual unemployability was merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under VA's Schedule for Rating Disabilities. See Norris v. West, 12 Vet. App. 413, 420-421 (1999); see also Roberson v. Principi, 251 F.3d 1378 (2001). The Court further held that a claim for a total disability rating based on individual unemployability was reasonably raised when a claimant, whose schedular rating met the minimum criteria under 38 C.F.R. § 4.16(a), requested entitlement to an increased rating and when there was evidence of current service-connected unemployability in the claimant's claims file or in records under VA control. Norris, 12 Vet. App. at 421. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Roberson 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, VA must consider a TDIU rating. Roberson, 251 F.3d at 1384. The veteran was placed on the TDRL with a 30 percent disability rating from the military in December 1987. A rating based by the Army's use of VA's Schedule for Rating Disabilities. Despite the use of the terminology that the veteran was socially and industrially debilitated, the veteran was not adjudged to be any more impaired than the 30 percent rating. In fact, the original proposed disability rating was at the 10 percent level prior to her retirement. The veteran was granted service connection, and awarded a 30 percent disability rating, for post-traumatic headaches based on her SMRs in January 1988. As noted supra, the veteran's initial claim for VA benefits was submitted while she was still on active duty. Thus her employment status was not at issue at that time. The veteran next submitted a formal claim, via a VA Form 21- 526, in January 1988. She purposefully crossed out the entire section of the form that related to information for individuals claiming to be totally disabled. It is reasonable to conclude that this elective action on her part meant that she had no intention of claiming that she was unemployable at that time. Thus there was no formal or informal claim for TDIU raised at the time of her claim in January 1988. The veteran's notation of "none" in response to whether she was employed at the time of her VA examination in December 1988 is not an informal claim for a TDIU rating. See 38 C.F.R. § 3.157(b)(1). In reading the submission, in context with all of the information of record at that time, it would be beyond speculation to conclude that her report of not being employed rose to the level of her being unable to obtain and maintain substantially gainful employment solely due to her service-connected disability. The fact that an individual is not employed does not equate to them being unemployable absent some evidence of unemployability. The Board finds that the veteran was merely reporting her employment status, one year after service, rather than asserting a claim. Moreover, the VA examination report itself provided no evidence to support a conclusion that the veteran was unemployable as a result of her service-connected disability. The RO's action to increase the veteran's disability rating for her headaches to 50 percent in March 1989 was an acknowledgement of an increase in her disability. However, the 50 percent rating did not satisfy the criteria for a TDIU rating and there was no evidence of record at the time to demonstrate the veteran required hospitalization for her headaches. As the veteran reported she was not employed, there was no assessment possible of whether there was marked interference with employment. Thus there was no basis for consideration of an extraschedular rating. The Board notes the later change of the veteran's combined disability rating, based on the CUE decision establishing an earlier effective date for the 10 percent rating for a seizures disorder, that provided a combined rating of 60 percent as of October 1988. However, that change, while establishing that the veteran met the criteria for a TDIU rating under 38 C.F.R. § 4.16(a), did not change the weight of the evidence that failed to show that the veteran was unemployable. The Board notes that the veteran was very much aware of her benefits and conditions for increasing her benefits from 1987 to 1991. She added her son to her disability award and her husband as well soon after service. The veteran argued for retroactive benefits for her son, back to her date of retirement. She asked for a refund of money she had paid for education benefits during service. She promptly notified the RO on several occasions when a check was not received. The evidence clearly demonstrates that the veteran was aware of her benefits, how to obtain an increase in benefits, and was responsive at any time when she felt she had not received her benefits. The record clearly supports a conclusion that if the veteran was unemployable due to her service-connected disabilities, she was able to communicate that fact to VA. She did not. VA treatment records for the period from August 1988 to July 1991 do not support a finding of the veteran being unemployable as a result of her service-connected disabilities. She was noted to be a housewife by outpatient entry in April 1991 and on her admission for alcohol abuse in May 1991. Again, although not employed, the evidence does not mean the veteran was unemployable. She described herself as a housewife but did not say she unable to work because of her disabilities. The evidence of record does not support a conclusion that the veteran had raised a claim for a TDIU rating in 1988 or 1991. See Norris, Roberson; see also 38 C.F.R. § 3.57(b)(1). Although the veteran met the criteria for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) as of October 1988, based on the CUE decision, the evidence did not show her to be unemployable as a result of her service-connected disabilities. Also as noted, the evidence of record did not support consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). The veteran's disability did not require frequent hospitalization, and, because she was unemployed or was being a housewife, there was no evidence of a marked interference with employment. The veteran was afforded a VA examination in April 1994 as part of a scheduled future examination. No history of the veteran's employment was noted in the report. Outside of several VA medical records dated between May 1993 and May 1997, nothing further was received from the veteran until her formal TDIU claim was received on May 20, 1997. The SSA records contain the veteran's own submission of her work history, one that was accepted, and relied on, by the SSA in its final determination of her disability status and effective date. The veteran reported being employed full- time after service as a driver from 1990 to 1991, and then as a cook between September 1991 and October 1993. Her employment in 1992 and 1993 is also documented by the medical records from St. Vincent's that record her various complaints and how she is affected at work by her physical complaints at least through July 1993. Moreover, the veteran's wages were not such that her employment would be considered to be marginal at the time. See generally Faust v. West, 13 Vet. App. 342 (2000). In addition, although the RO considered the veteran for a TDIU rating based on her statement of being unemployed at that the time of her VA examination in February 1992, her SSA employment records clearly show her as employed at the time of that VA examination. The November 1994 report from Dr. Taylor is the first objective medical evidence of the veteran's unemployability from a medical standpoint. Even with that assessment, his primary diagnoses were mixed substance abuse, continuous, to include alcohol and prescription drugs, and PTSD. Two medical conditions that are not service connected. He referred to the veteran's headaches and seizures by history only. The September 1996 report from Dr. Horton noted that the veteran's several impairments, to include nonservice- connected sleep disorder and anxiety disorder, would make it exceptionally difficult for her to manage the demands of most employment settings. Finally, there is the October 1996 report from Dr. O'Sullivan who also stated that the veteran would have a difficult time working at a job. As noted supra, the SSA determined the onset of the veteran's disability as of October 10, 1993. The primary disability was organic mental disorders and the secondary was anxiety related disorders. The remainder of the medical evidence added to the record, with the exception of the opinion from Dr. Bash, does not impact the question of an earlier effective date for the veteran's TDIU. In regard to the opinion from Dr. Bash, the Board finds the opinion to have little probative value. Dr. Bash said that the veteran had been unable to work in her area of training. By itself this statement is of little value in assessing the situation and would not be determinative of a finding of unemployability. It is factually incorrect in this case. The veteran's main training in service was as a cook. Her employment, as noted in the SSA records was as a cook from 1991 to 1993. Dr. Bash failed to address the veteran's documented post-service employment, in any capacity, in his opinion and how that would impact his assessment of the veteran being unemployable from the day she left service. Further, he stated that the veteran has had VA and non-VA physicians say she is not able to be employed. Those opinions have been noted in this decision. However, they relate to opinions rendered in 1994 and later. There is no such opinion of record between 1987 and 1994. Dr. Bash also refers to the veteran's "little if any taxable income" in his opinion. There is no factual basis to support this conclusion in the record that he said he reviewed. No income data was provided by the veteran, her attorney, or Dr. Bash at the time this opinion was provided in 2004, or since. In total, the opinion does not demonstrate that the veteran was unable to obtain and maintain substantially gainful employment, based on her service-connected disabilities, immediately on her retirement in December 1987 as he opined. Since Dr. Bash limited his finding to that date, the opinion does not provide any support for determining a different effective date for the veteran's claim. The RO decision of July 2004 held that the veteran met the schedular requirements for a TDIU rating as of July 1991. This was prior to the finding of CUE in the July 1992 rating decision. The RO also noted that the veteran was unemployed, by her statement, at the time of the VA examination in February 1992. Accordingly, it was determined that the RO should have "invited" a claim for TDIU at that time. The RO then re-adjudicated the veteran's claim and established her effective date as of January 1, 1994. The RO based this determination on the veteran's TDIU claim from May 1997 when she said she had last worked "3-4 years ago." The RO established December 1993 as the last period of work based on the statement and established the effective date of January 1, 1994. The veteran was informed of the need for information to establish her work history as her prior reporting was considered to be inconsistent. This led to the veteran asking that the RO obtain a wage and earnings statement from the SSA. As noted elsewhere in this decision, the Board attempted to obtain the statement; however, it required the cooperation of the veteran. Unfortunately, the cooperation was not extended. In that regard the Board was given an initial authorization to obtain the statement from the SSA. However, the records were not requested right away. As documented in a Report of Contact, a new authorization was required by the SSA. This requirement was conveyed to the veteran but no new authorization was ever received to permit VA to obtain the statement. The Board notes that the duty to assist, even under the VCAA, is not a one-way street. See generally Hyatt v. Nicholson, No. 04-0957, 2007 WL 2238795 (Vet. App., Aug. 6, 2007). When a veteran is requested to provide necessary information or authorization to obtain records, the veteran must comply. Their failure to comply can result in the records not being obtained. See 38 C.F.R. § 3.159(c)(2)(i), (ii) (2006). The veteran was advised of the need for the new authorization. The veteran was further advised that the case would be decided based on the evidence of record in the absence of the necessary authorization. The veteran's attorney, rather than provide the authorization, or obtain the statement, elected to challenge the validity of the requirement to give the authorization. The applicable statute provides that federal agencies are required to provide requested information, and at no cost. See 38 U.S.C.A. § 5106 (West 2002). However, the statute does not prohibit the record holding federal agency from prescribing what is required to obtain the requested record. 38 C.F.R. § 3.159(c)(2)(ii). In this case, the veteran failed to provide the needed authorization and VA was unable to obtain the statement. In summary, there are no informal claims for a grant of TDIU benefits pending at this time. The veteran's claim in January 1988 specifically removed a total disability from consideration. The December 1988 VA examination form noted her employment status, and nothing more. The 1991 VA discharge summary also only noted her status as unemployed while also noting she was a housewife. There was no accompanying evidence of the veteran's unemployability to raise a claim for TDIU. The SSA evidence established that the veteran was employed, full-time in more than marginal employment, from 1990 to 1993. In reviewing all the evidence of record the Board finds that the veteran is not entitled to an effective date for her TDIU rating for any period prior to January 1, 1994. While the evidence suggests that she was unemployed for periods prior to this date, there is a lack of competent, convincing evidence that she was unemployable prior to then. For the reasons discussed, supra, there is no basis to establish an earlier effective date. ORDER An effective date prior to January 1, 1994 for entitlement to TDIU benefits is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs