Citation Nr: 0809977 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-09 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an effective date earlier than April 17, 2001, for the grant of individual unemployability (TDIU). 2. Entitlement to an effective date earlier than April 17, 2001, for eligibility to receive Dependents' Educational Assistance (DEA) under Chapter 35, Title 38 of the United States Code. ATTORNEY FOR THE BOARD S. Shoreman, Associate Counsel INTRODUCTION The veteran had active service from July 1946 to December 1947 and from March 1948 to January 1950. This matter comes before the Board of Veterans' Appeals (Board) from a June 2002 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) in which entitlement to TDIU was denied. The veteran submitted a timely Notice of Disagreement (NOD) and, in a March 2004 Decision Review Officer (DRO) decision, the RO granted TDIU and established eligibility to DEA, both effective from February 2, 2002. A timely NOD was submitted by the veteran and, in a January 2005 DRO decision, the RO amended the effective dates for TDIU and DEA to April 17, 2001. FINDINGS OF FACT There is no evidence of record demonstrating that the veteran was unable to obtain or maintain substantially gainful employment prior to April 17, 2001. CONCLUSION OF LAW 1. The criteria for an effective date for an award of TDIU prior to April 17, 2001, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.157, 3.340, 3.341(a), 3.400(o)(2), 4.16 (2007). 2. The criteria for an effective date for an award of DEA prior to April 17, 2001, have not been met. 38 U.S.C.A. § 5113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.157, 3.340, 3.341(a), 3.400(o)(2), 21.3041 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a veteran before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007). In February 2002 and May 2006, the RO sent the veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. The Board finds that the content of the letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. The June 2002 rating decision, March 2004 and January 2005 DRO decisions, January 2006 SOC, and December 2006 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60-day periods in which to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in a March 2006 letter which the RO sent to the veteran. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis VA will grant a total disability evaluation for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Basic eligibility for Chapter 35 DEA benefits is established for a claimant in one of several ways, including status as the child of a veteran who has a total and permanent disability rating from service-connected disability. See 38 U.S.C.A. § 3501(a)(1)(A); 38 C.F.R. §§ 21.3020, 21.3021. With regard to claims for increase or a total disability rating based on individual unemployability, VA laws and regulations provide that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor," unless specifically provided otherwise. 38 U.S.C.A. § 5110(a). Section 5110(b)(2) provides otherwise, by stating that the effective date of an increased rating "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." Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is "date of receipt of claim or date entitlement arose, whichever is later." Paragraph (o)(2) provides that the effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim." See Harper v. Brown, 10 Vet. App. 125 (1997). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his duly authorized representative, may be considered an informal claim. Such claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. 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). The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability. The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability- compensation claim until service connection had been awarded. 38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter. VA must review all the evidence of record, not just evidence not previously considered. The Court noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase. The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually- ascertainable increase occurred more than one year prior to receipt of the claim for increase. Hazan v. Gober, 10 Vet. App. 511 (1997). In the present case, the veteran submitted his application for compensation based on unemployability on February 5, 2002. Therefore, the earliest the veteran could possibly be found eligible for compensation based on unemployability under the law would be February 5, 2001. The June 2002 RO rating decision denied TDIU and DEA because the veteran did not meet the schedular criteria. The veteran was found to be service-connected for the residuals of degenerative joint disease of the left knee, left hip, and lumbar spine, secondary to his service-connected traumatic arthritis of the left ankle, with an evaluation of 10 percent each, effective April 17, 2001. The veteran's 20 percent evaluation for traumatic arthritis of the left ankle was continued. A February 2003 letter from a physician at the Prescott VA Medical Center (VAMC) states that the veteran will never be able to work again because of his degenerative arthritis. In August 2003 the RO requested an Advisory Decision from the Director, Compensation and Pension Service, as to a grant of TDIU under an extra-schedular evaluation. The Advisory Opinion in response to that request granted entitlement to an extraschedular evaluation based upon individual unemployability. The RO then issued its March 2004 decision granting TDIU and DEA effective February 5, 2002, the date of the claim, citing the combined 40 percent evaluation for service connected degenerative joint disease of the left ankle, left knee, left hip, and lumbar spine, the Advisory Opinion, and the February 2003 letter from the Prescott VAMC physician. In its January 2005 decision, the RO amended the effective dates of the veteran's TDIU to April 17, 2001, because the disabilities that rendered him unemployable had been granted effective on that date, the veteran had filed his claim within one year thereafter, and he was shown to be unemployable as of that date. The effective date of DEA was changed to April 17, 2001, because that was the date of TDIU eligibility. The veteran's treatment records from the Prescott VAMC show that on April 17, 2001, his left knee, left hip, and lumbar spine disorders were found likely to be the result of his service-connected traumatic arthritis of the left ankle. There is no evidence from prior to April 17, 2001, stating that the veteran's degenerative joint disorders of the left ankle, left knee, left hip, and lumbar spine were secondary to his service-connected left ankle disorder. As discussed above, the effective date of compensation for the veteran's service-connected degenerative joint disease of the left knee, left hip, and lumbar spine was April 17, 2001. Therefore, prior to April 17, 2001, the veteran's only service-connected impairment was his left ankle disorder. Thus, the left ankle disorder is the only impairment for which eligibility for TDIU and DEA could be based upon prior to April 17, 2001. See Hatlestad, supra. At VA treatment on April 13, 2001, the veteran reported having increasing problems with his left ankle as he got older. He complained of pain on both sides of the ankle, and occasional swelling. The pain was worse at night, and he said Tylenol helped alleviate it. He had worn an ankle brace for 20 years, and also wore shoes that VA gave him because of the ankle disability. Upon examination, there was a marked decrease in the range of motion of the left ankle and some "obvious deformity." There are no other treatment notes for the veteran's left ankle for the period of February 5, 2001, to April 16, 2001. After a review of the claims file, the Board concludes that the facts and circumstances are against finding that the veteran's service-connected left ankle disorder precluded him from obtaining or maintaining a substantially gainful occupation prior to April 17, 2001. As the preponderance of the evidence is against the claim for TDIU and DEA prior to April 17, 2001, the benefit-of-the- doubt rule is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An effective date earlier than April 17, 2001, for individual unemployability is denied. An effective date earlier than April 17, 2001, for an award of DEA is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs