Citation Nr: 0810158 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-15 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than November 20, 2000, for the grant of a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to October 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has granted the veteran's motion to advance his case on the docket, pursuant to 38 U.S.C.A. § 7101 (West 2002) and 38 C.F.R. § 20.099(c) (2007). In January 2008, the veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The veteran's claim of entitlement to a higher disability rating for PTSD was received on November 20, 2000. 2. During his January 2001 VA examination, the veteran indicated that he had retired in 1976 because of his anxiety attacks. 3. Prior to November 20, 2000, the veteran did not meet the schedular criteria for a TDIU. 4. Unemployability due to service-connected disability was not factually ascertainable prior to November 20, 2000. CONCLUSION OF LAW The criteria for an effective date earlier than November 20, 2000, for the award of TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform 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; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the veteran's claim was received November 20, 2000, after the enactment of the VCAA. A letter dated in January 2005 told the veteran that VA would make reasonable efforts to obtain evidence necessary to support his claim. He was informed that he was required to provide sufficient information to allow VA to obtain records. He was asked to identify any VA or private medical treatment. The various types of evidence that might support his claim were listed. The letter outlined VA's responsibilities with respect to obtaining evidence on the veteran's behalf. The veteran was asked to submit any evidence in his possession that pertained to his claim. The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. As the veteran's claim is one for an earlier effective date, the veteran was provided with this information in the March 2006 supplemental statement of the case. Therefore, the veteran had actual knowledge of the criteria necessary to substantiate a claim for an earlier effective date. While complete VCAA notice in this case was not provided prior to the initial adjudication, the notice was provided and subsequently readjudicated by the RO in the supplemental statement of the case dated in January 2007, which was prior to the transfer and certification of the case to the Board. The Board finds that the content of the notice provided to the veteran fully 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. The veteran been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the veteran nor his representative has contended that any evidence relative to the issue decided herein is absent from the record. For the foregoing reasons, it is not prejudicial to the veteran for the Board to finally decide this appeal. Analysis The relevant law provides that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C.A. § 5110(b)(2). The effective dates of total ratings are governed by the increased rating regulations. See 38 C.F.R. § 3.400(o)(1) & (2); Servello v. Derwinski, 3 Vet. App. 196 (1992). The Veterans Claims Court has indicated that in order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). The Court, in Hazan, noted that 38 U.S.C.A. § 5110(b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazen, 10 Vet. App. at 521. Also, with regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment, or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. See 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). The provisions of 38 C.F.R. § 3.155(c) provide that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. The provisions of 38 C.F.R. § 3.157 provide that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year. There is no medical evidence regarding the veteran's employability or PTSD, his only service-connected claim, dated from February 1991, when his claim was last adjudicated, to the date of his current claim, November 20, 2000. Generally, under 38 C.F.R. § 3.340(a)(1), total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 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). Under 38 C.F.R. § 4.16(b), a TDIU might be awarded even if the requisite schedular criteria is not met if a claimant is nevertheless shown to be "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. In reviewing claims for assignment of earlier effective dates for TDIU awards, the applicable law is the same as that governing assignment of earlier effective dates for increased rating claims. In a January 1947 rating decision, the veteran was service- connected for psychoneurosis, anxiety, and assigned a 10 percent rating. In a December 1950 rating decision, the RO reduced the veteran's evaluation to 0 percent. In a July 1990 rating decision, the RO recharacterized the veteran's disability as PTSD and assigned a 10 percent evaluation. On November 20, 2000, he submitted a claim for an increased rating for his PTSD. The RO assigned a 70 percent rating as of this date and granted entitlement to TDIU as of this date, because the veteran indicated during his VA examination that he was unable to work due to his PTSD. The 70 percent rating qualified the veteran for a TDIU under the provisions of 38 C.F.R. § 4.16(a). The effective date of November 20, 2000, was established because it was the date the veteran filed the claim for additional compensation benefits, ultimately leading to the grant of a TDIU. The veteran contends that he is entitled to an effective date of July 1, 1978, since that is the last day he worked. He retired from his job that day as a superintendent of schools. He contends he retired due to his PTSD. In addition, the veteran's representative indicated that the veteran submitted a claim in December 1989, in which he requested an increased rating for his nervous disorder. He indicated in that statement that he functioned well in his career until ten years ago, when he took an early retirement due to the extreme stresses in his job and his inability to cope with them. Even if a claim for TDIU could be read into this statement, that claim was implicitly denied in July 1990. For guidance, the Board turns to a case decided by the Federal Circuit. In DeShotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the veteran filed a claim for residuals from an automobile accident. The RO granted service connection for a shoulder disability but denied a claim for residual head injury. He did not file a claim for a psychiatric disability. He later sought to reopen a claim for head injury residuals. After the claim for head injury residuals was granted, he filed a claim for a psychiatric disorder. Eventually, a claim for a psychiatric disorder was granted, and the veteran maintained that the RO should have assigned an effective date as of his initial claim for service connection for residuals from the automobile accident. In rejecting the veteran's contention, the Federal Circuit declined to accept the claimant's assertion that a psychiatric claim remained pending and unadjudicated. Relying on the language in Andrews, 421 F.3d at 1281, the Federal Circuit found that: where an RO renders a decision on a veteran's claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO's failure to address the implied claim 'is properly challenged through a CUE motion,' not a direct appeal. DeShotel, 457 F.3d at 1262 (citing Roberson, 251 F.3d at 1383-84). The Federal Circuit concluded that if the veteran believed that the RO improperly failed to address his claim for a psychiatric disorder when it granted service connection for a head injury, his remedy was to either file a timely direct appeal or to file a CUE claim seeking to reopen the earlier decision. See id. This is analogous to the situation here. The veteran filed a claim for an increased rating in December 1989. The record indicates that he was represented by a service organization at the time. He now contends that the December 1989 claim should have been read to include a claim for a TDIU. Importantly, like the claimant in DeShotel, there was no claim made for a TDIU at the time, and the veteran did not perfect an appeal of the July 1990 decision, which recharacterized the veteran's disability as being PTSD instead of anxiety neurosis and increased his disability rating to 10 percent. In this instance, absent an assertion for CUE in the July 1990 rating decision, the veteran's attempts to assert an earlier effective date based on that unappealed July 1990 rating decision must be denied. The Board notes that Roberson v. Principi, 251 F.3d 1378 (2001) is distinguishable from this case for two reasons. The appellant was represented (see box 27 wherein the representative signed the rating decision), and the veteran did not submit evidence of unemployability. Next, in regard to the ultimate grant for TDIU in a December 2003 rating decision, in which an effective date of November 20, 2000, was assigned, the RO and the Board have jurisdictional limitations as to what may be adjudicated or addressed on appeal. Under the provisions of 38 C.F.R. § 4.16(a), on which a TDIU was granted, 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 at 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. There was simply no jurisdiction of the RO or the Board to grant a benefit or award a benefit to which the veteran was not yet entitled. It was not until the grant of 70 percent disability rating for PTSD effective November 20, 2000 that triggered the jurisdictional threshold for the grant of a TDIU. Therefore, the veteran was not entitled to an effective date prior to November 20, 2000, for the grant of schedular TDIU. See 38 C.F.R. § 4.16(a); Ross v. Peake, 21 Vet. App. 528 (2008). Next, under 38 C.F.R. § 4.16(b), it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards are directed to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Any consideration of extraschedular application of TDIU is confined to the one- year time period prior to the veteran's claim. However, as discussed below, there is no pertinent evidence dated during this year. The next question is to establish the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date. See 38 C.F.R. § 3.400(o)(2). The record does not contain a competent opinion, in the one-year prior to the effective date, which attributed his unemployment to a single service-connected disability, that of PTSD. The January 2001 VA examination is the only medical record contained in the veteran's claims file dated since the last previous adjudication in February 1991. Therefore, there is no pertinent evidence of record dated within the year prior to the veteran's claim in November 2000. See Hazan v. Gober, 10 Vet. App. 511, 520 (1997). There was no finding that the veteran's service-connected PTSD prohibited him from obtaining or maintaining substantially gainful employment prior to November 20, 2000. The Board notes that the record shows the veteran was incarcerated from May 1999 to August 2000. The veteran indicated during his January 2001 VA examination that his main charge was fraud. However, this evidence does not support the veteran's contention that he was unable to work, due to his PTSD, prior to November 20, 2000. In sum, the legal criteria have not been met for an effective date earlier than November 20, 2000, for the grant of TDIU. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400, 4.16 (2007). ORDER Entitlement to an effective date earlier than November 20, 2000 for the grant of TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs