Citation Nr: 0810994 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-35 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to November 21, 2003, for the grant of a total disability rating based upon individual unemployability. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from April 1981 to April 1985. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. REMAND The veteran is seeking entitlement to an effective date prior to November 21, 2003, for the award of a total rating for compensation purposes based upon individual unemployability (TDIU). The effective date rules for an increased compensation claim apply for a TDIU claim. Hurd v. West, 13 Vet. App. 449, 451 (2000). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2007). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. § 3.400(o)(2). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(0)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is answered by the Board based on the evidence in a veteran's VA claims folder. "Evidence in a claimant's file which demonstrates that an increase in disability was 'ascertainable' up to one year prior to the claimant's submission of a 'claim' for VA compensation should be dispositive on the question of an effective date for any award that ensues." Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). After reviewing the veteran's claims folder, the Board finds there is a further duty to assist the veteran with his claim herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In June 2006, the RO sent the veteran a letter requesting additional information concerning his claim for an effective date earlier than November 21, 2003, for a TDIU. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In response, the veteran filed a statement, dated in July 2006, noting that he had received treatment prior to November 21, 2003, at VA treatment facilities in Milwaukee and Madison, Wisconsin. In addition, the veteran's original formal claim for a TDIU, filed in November 21, 2003, indicated that the veteran had been receiving treatment for his service-connected disabilities at VA facilities (although no specific VA facilities were indicated). After reviewing the veteran's claims folder, the Board concludes that the RO must make an attempt to obtain the records identified by the veteran. While the RO sought and obtained records VA medical center in Chicago, Illinois, a request for or records from the identified VA facilities in Wisconsin are not shown. Accordingly, the case is remanded for the following action: 1. The RO must send to the veteran a letter advising him of the evidence required to support his claim for entitlement to an earlier effective date prior to November 21, 2003, for a TDIU and the procedures for obtaining such evidence, in accordance with the VCAA and current case law. 2. The RO must request that the veteran identify all VA and non-VA medical providers who have treated him for his service-connected disabilities, prior to November 21, 2003. The RO must then obtain copies of the related medical records that are not already in the claims folder. Regardless of the veteran's response, the RO must obtain all of the veteran's treatment records from the VA medical centers in Milwaukee and Madison, Wisconsin, from November 2001 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 3. The RO must then re-adjudicate the veteran's claim for entitlement to an earlier effective date prior to November 21, 2003, for a TDIU. If the benefit sought on appeal remains denied, the veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).