Citation Nr: 0811535 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-36 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date prior to June 24, 2004, for the award of a total disability rating based upon individual unemployability. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from January 1970 and October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico . FINDINGS OF FACT 1. The veteran's claim for entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU) was received by VA on June 24, 2004. 2. It is not factually ascertainable, prior to June 24, 2004, that the veteran had become individually unemployable due to his service-connected schizophrenia, undifferentiated type. CONCLUSION OF LAW The criteria for an effective date prior to June 24, 2004, for entitlement to TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the veteran's claim for an earlier effective date for TDIU, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, a letter dated in August 2004 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Further, 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, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication); Overton v. Nicholson, 20 Vet. App. 427 (2006). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). 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); 38 C.F.R. § 3.400(o)(1). 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). TDIU benefits are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for schizophrenia, undifferentiated type, competent, rated 70 percent disabling since November 1, 1981. The veteran filed a claim for TDIU on June 24, 2004. A "claim" is defined in the VA regulations as "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) (2007). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2007). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2006). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. The veteran's claim was granted by the RO in a November 2004 rating decision which granted TDIU effective June 24, 2004. There is no evidence of an informal or formal claim prior to this date. Here, the date of claim was June 24, 2004, which is the date the veteran filed his claim. Thus, under the general rule, the proper effective date is June 24, 2004. 38 C.F.R. § 3.400(o)(1). The Board must determine, however, whether the exception applies: whether unemployability due to the veteran's service-connected schizophrenia was factually ascertainable within one year of June 24, 2004, the date of claim. 38 C.F.R. § 3.400(o)(2). The Board has completed a thorough review of all the evidence of record from this time period. See Hazan v. Gober, 10 Vet. App. 511, 518 (1997) (holding that VA must review all evidence of record one year prior to the claim for increase to ascertain the earliest possible effective date). Review of the remaining evidence of record for the one-year period prior to June 24, 2004, does not support a finding that the veteran was unemployable due to his service-connected schizophrenia prior to June 24, 2004. Thus, the Board does not find evidence of unemployability due to the veteran's service-connected schizophrenia to be factually ascertainable within one year of June 24, 2004. A treatment report, dated in June 2003, noted that the veteran had been living alone for three years. Mental status examination revealed a neutral mood and affect. His answers were coherent. He reported occasional hallucinations. He was oriented, times three, and exhibited poor social judgment, in particular he showed diminished insight into interpersonal relations and social subtleties. The report concluded with a diagnosis of schizophrenia. A treatment report, dated in May 2004, noted that the veteran presented with a neutral mood and shallow effect. His speech was normal and coherent. He reported having recently experienced a post coital headache for which he sought treatment. He reported occasional hallucinations. He was oriented, times three, non-suicidal, and presented good judgment and fair insight. The report concluded with a diagnosis of schizophrenia. While the evidence of record clearly shows that the veteran's service-connected schizophrenia was significant, this has been acknowledged by the 70 percent disability rating which was assigned to this condition. There is no evidence during the year prior to his having filed a claim indicating that he was unemployable due to his service-connected schizophrenia. Accordingly, the veteran is not entitled to an earlier effective date prior to the date of his claim on June 24, 2004. 38 C.F.R. § 3.400(o)(1)(2). For the reasons discussed above, the preponderance of the evidence is against the veteran's claim for an earlier effective date for TDIU entitlement. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to June 24, 2004, for TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs