Citation Nr: 0809994 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-21 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an earlier effective date than October 18, 1991 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and C.T. ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from May 1941 to March 1949, and April 1949 to November 1952. He was a prisoner of war. He died in April 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The appellant and C.T. appeared and testified at a personal hearing in October 2007 before the undersigned Veterans Law Judge in Washington, DC. A transcript of the hearing has been added to the record. FINDINGS OF FACT 1. The veteran was a prisoner of war. 2. The veteran's first claim for TDIU, inferred from the increased rating claim and evidence of unemployability, was received by VA on October 18, 1991. 3. At the time of the veteran's death on April [redacted], 2005, he had a claim pending for an earlier effective date for TDIU. 4. The evidence in the claims file at the time of the veteran's death shows that, as of October 18, 1990, one year prior to receipt of the TDIU claim, the combined rating percentage criteria and criteria of unemployability for a TDIU had been met. CONCLUSION OF LAW The criteria for an earlier effective date of October 18, 1990, but no earlier, for the grant of TDIU, for accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.1000, 4.15, 4.16, 4.18 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VA notice letter dated in November 2005 satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as the letter informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and asked the appellant to send in any evidence in the appellant's possession that pertains to the claim. With regard to the duty to notify and assist a claimant, because the evidence in accrued benefits claims may be based only on evidence in the file at the date of the veteran's death, no further assistance is possible or required in this case. In this decision, the Board has found that, as a matter of law, the appellant is not entitled to an earlier effective date for TDIU than the October 18, 1990 effective date granted, for accrued benefits purposes. The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). In such claims where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In cases such as this, VA is not required to address the duty to notify or assist a claimant, where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Accrued Benefits Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). The TDIU regulation provides that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and 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). Multiple disabilities resulting from a common etiology will be considered as one disability for the purpose of attaining a 60 percent disability where there are two or more disabilities. 38 C.F.R. § 4.16(a)(2). Multiple disabilities incurred as a prisoner of war will be considered as one disability for the purpose attaining a 60 percent disability where there are two or more disabilities. 38 C.F.R. § 4.16(a)(5). Before a TDIU may be granted, there must also be a determination that the veteran's service-connected disabilities are sufficient to produce unemployability without regard to advancing age or non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a TDIU case is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). At the personal hearing in October 2007, the appellant's representative contented that, as of October 18, 1990, which is one year prior to the veteran's October 18, 1991 increased rating claim, the veteran's 60 percent combined disability rating met the percentage rating criteria for TDIU because it was based on disabilities from a common etiology and was also based on disabilities incurred as a prisoner of war. The representative further contends that, based on the evidence of record of unemployability at the time of the veteran's October 18, 1991 increased rating claim, October 18, 1991 increased rating claim was sufficient to constitute an informal claim for TDIU, and should be considered a TDIU claim. The appellant contends that an earlier effective date of 1980 for TDIU is warranted because the veteran had not worked since 1977, and had first applied for benefits in May 1980, although VA denied that claim and notified the veteran of the denial. In this case, on October 18, 1991, the veteran filed a claim for increased rating for various service-connected disabilities. A claim for TDIU may be inferred from the October 18, 1991 increased rating claim, in light of the evidence of record of unemployability. The evidence also showed that the veteran suffered from a combination of mental and physical disabilities that were shown or presumed to have been incurred as a prisoner of war during the veteran's World War II service. On October 18, 1991, when the veteran filed the claim for increased rating, the evidence of record already reflected that he had not worked since 1977. In the October 1991 claim for an increased rating, the veteran is presumed to have been seeking the maximum benefit available. See AB v. Brown, 6 Vet. App. 35, 38 (1993). For this reason, the Board finds that the veteran's October 18, 1991 claim for an increased rating was also a claim for TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Pursuant to the October 18, 1991 increased rating claim, subsequent rating decisions granted increased ratings that resulted in a 60 percent combined disability rating for service-connected disabilities from October 18, 1990 (one year prior to the increased rating claim), and a 90 percent combined disability rating for service-connected disabilities from October 18, 1991. As the appellant's representative correctly contended at the October 2007 personal hearing, as of October 18, 1990, the veteran had a 60 percent combined disability rating due to multiple physical and psychiatric service-connected disabilities incurred as a prisoner of war or that resulted from a common etiology; therefore, the 60 percent disability rating may be considered as one disability for purposes of eligibility for TDIU. For this reason, the Board finds that, from October 18, 1990, the veteran in fact met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a)(5) (2007). The evidence of record in the claims file also shows that, as of October 18, 1990, the veteran also met the additional unemployability criteria for a TDIU. The evidence of record already reflected that he had not worked since 1977, and showed a combination of mental and physical impairments that resulted in severe functional impairments. For these reasons, the Board finds that, as of October 18, 1990, the rating percentage criteria and criteria of unemployability for a TDIU had been met. In this case, a December 2001 rating decision during the veteran's lifetime granted his TDIU claim, and assigned an effective date for TDIU of August 7, 1992, the date of receipt of the veteran's formal claim for TDIU. The veteran did not enter a notice of disagreement with this decision within one year of issuance of notice (March 1, 2002). In March 2005 and prior to the veteran's death, the appellant, as the veteran's fiduciary, filed a statement that could be liberally construed as a claim for an earlier effective date for the grant of TDIU. The veteran died on April [redacted], 2005. During the current appeal for accrued benefits, an April 2006 RO rating decision granted an earlier effective date of October 18, 1991 for the grant of TDIU, reasoning that this was the earliest date for which the combined rating percentages rendered the veteran eligible for TDIU, when in fact the veteran met the combined rating criteria to be eligible for TDIU from October 18, 1990 because he had a 60 percent combined disability rating due to multiple physical and psychiatric service-connected disabilities incurred as a prisoner of war that met the schedular criteria for a TDIU at 38 C.F.R. § 4.16(a)(5) (one disability rated as 60 percent disabled). The effective date for TDIU is governed by the effective date provisions for increased ratings of 38 C.F.R. § 3.400(o). See Hurd v. West , 13 Vet. App. 449 (2000) (Court applied 38 U.S.C.A. § 5110(b)(2), which applies to increased rating claims, to a TDIU claim). The applicable effective date statute and regulations provide that the proper effective date for TDIU is the earliest 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, the effective date is the date of receipt of claim for increased rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). With regard to the appellant's contention that an earlier effective date of 1980 for TDIU is warranted because the veteran had not worked since 1977, and had first applied for benefits in May 1980, the evidence does not show that the veteran met the criteria for a TDIU prior to October 18, 1990. Prior to October 18, 1990, the combined disability rating for the veteran's service-connected disabilities was only 50 percent, which does not meet the combined rating criteria to be eligible for a TDIU. 38 C.F.R. § 4.16(a). In this case, because October 18, 1990, which is the date one year prior to receipt of the veteran's October 18, 1991 TDIU claim (inferred from the increased rating claim), is the earliest effective date provided by the controlling effective date statute and regulation, there is no legal basis for granting an earlier effective date than October 18, 1990. For these reasons, the Board finds that the criteria for an earlier effective date of October 18, 1990, but no earlier, for the grant of TDIU, for accrued benefits purposes, have been met. ORDER An earlier effective date of October 18, 1990 for the grant of TDIU, for accrued benefits purposes, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs