Citation Nr: 0812463	
Decision Date: 04/15/08    Archive Date: 05/01/08

DOCKET NO.  05-36 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma

	

THE ISSUE

Entitlement to an earlier effective date prior to September 
10, 2004, for the grant of a total disability rating based on 
individual unemployability due to service-connected 
disability (TDIU).



REPRESENTATION

Appellant represented by:  Oklahoma Department of Veterans 
Affairs



ATTORNEY FOR THE BOARD

Jessica J. Wills, Associate Counsel 


INTRODUCTION

The veteran served on active duty from April 1969 to February 
1973.

This matter comes to the Board of Veterans' Appeals (BVA or 
Board) on appeal from an April 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Muskogee, Oklahoma.  That decision granted TDIU effective 
from October 14, 2004.  The veteran appealed that decision to 
BVA, and the case was referred to the Board for appellate 
review.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  The veteran filed a formal claim for TDIU on December 15, 
2004.  

3.   Prior to March 15, 2004, the veteran was assigned a 50 
percent disability evaluation for PTSD; a 10 percent 
disability evaluation for bilateral hearing loss; and, a 10 
percent disability evaluation for tinnitus.  

4.  A March 2005 rating decision increased the veteran's 
disability evaluation to 40 percent for his bilateral hearing 
loss effective from March 15, 2004, and an April 2005 rating 
decision increased his disability evaluation to 70 percent 
for PTSD effective from September 10, 2004.

4.  The medical evidence of record shows that the veteran was 
unemployable due to his service-connected disabilities as of 
February 5, 2004.  





CONCLUSION OF LAW

The requirements for an effective date of February 5, 2004, 
for the grant of TDIU have been met.  38 U.S.C.A. §§ 5101, 
5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 
3.400 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 
38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002).  The notice required must be provided 
to the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it must (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; (3) inform the claimant about the information and 
evidence the claimant is expected to provide; and (4) request 
or tell the claimant to provide any evidence in the 
claimant's possession that pertains to the claim.  
38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 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, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.

Nevertheless, in this case, the veteran is challenging the 
effective date for the grant of TDIU.  In Dingess, the Court 
of Appeals for Veterans Claims held that in cases where 
service connection has been granted and an initial disability 
rating and effective date have been assigned, the claim has 
been more than substantiated, it has been proven, thereby 
rendering section 5103(a) notice no longer required because 
the purpose that the notice is intended to serve has been 
fulfilled.  Id. at 490-91.  Thus, because the notice that was 
provided before TDIU was granted was legally sufficient, VA's 
duty to notify in this case has been satisfied.

In addition, the duty to assist the veteran has also been 
satisfied in this case.  The veteran's service medical 
records as well as all available VA medical records and 
private medical records pertinent to the years after service 
are in the claims file and were reviewed by both the RO and 
the Board in connection with the veteran's claim.  The 
veteran was also afforded VA examinations in October 2004 and 
February 2005.  VA has further assisted the veteran and his 
representative throughout the course of this appeal by 
providing them a SOC, which informed them of the laws and 
regulations relevant to the veteran's claim.  For these 
reasons, the Board concludes that VA has fulfilled the duty 
to assist the veteran in this case.


Law and Analysis

Under VA laws and regulations, a specific claim in the form 
prescribed by the VA must be filed in order for benefits to 
be paid or furnished to any individual under laws 
administered by the VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. 
§ 3.151(a).  In general, the effective date of an award based 
on an original claim or a claim reopened after final 
adjudication of compensation shall be fixed in accordance 
with the facts found, but shall not be earlier than the date 
of the receipt of the application.  38 U.S.C.A. § 5110(a); 
38 C.F.R. § 3.400.  Generally, the effective date of an award 
of disability compensation based on an original claim shall 
be the date of receipt of the claim or the date entitlement 
arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. 
§ 3.400.  However, if the claim is received within one year 
after separation from service, the effective date of an award 
of disability compensation shall be the day following 
separation from active service.  38 U.S.C.A.                   
§ 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  The effective date 
of an award of disability compensation based on a claim to 
reopen after a final disallowance shall be the date of 
receipt of the new claim or the date entitlement arose, 
whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 
3.400(q)(ii), (r).

A claim for TDIU is an application for increased compensation 
within the meaning of the statute because the claimant is 
attempting to show that his service-connected disability has 
worsened. Wood v. Derwinski, 1Vet. App., 267, 269 (1991).  
For an increase in disability compensation, the effective 
date will be 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, 
date of receipt of claim.  38 U.S.C.A. § 5110; 38 C.F.R. § 
3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 
(1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).

In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted 
that 38 C.F.R. § 3.400(o)(2) was added to permit payment of 
increased disability compensation retroactively to the date 
the evidence establishes the increase in the degree of 
disability had occurred.  That section was intended to be 
applied in those instances where the date of increased 
disablement can be factually ascertained with a degree of 
certainty.  It was noted that this section was not intended 
to cover situations where disability worsened gradually and 
imperceptibly over an extended period of time.

"Claim" is 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); Brannon v. West, 12 Vet. App. 
32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 
(1992).  Any communication or action, indicating an intent to 
apply for one or more benefits under laws administered by the 
VA from a claimant may be considered an informal claim.  Such 
an informal claim must identify the benefits 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.  38 C.F.R. § 3.155(a).  To determine when a 
claim was received, the Board must review all communications 
in the claims file that may be construed as an application or 
claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 
(1992).

In considering the evidence of record under the laws and 
regulations as set forth above, the Board finds that the 
veteran is entitled to an earlier effective date for the 
grant of TDIU.  The veteran first presented his claim for 
TDIU in a VA Form 21-8940, Veteran's Application for 
Increased Compensation Based on Unemployability, received on 
December 15, 2004.  The April 2005 rating decision currently 
on appeal granted TDIU and assigned October 14, 2004, as the 
effective date.  The veteran appealed that decision, and a 
September 2005 rating decision and statement of the case 
(SOC) subsequently found that there was clear and 
unmistakable error in the April 2005 rating decision and 
instead assigned September 10, 2004, as the effective date 
for the grant of TDIU.  The September 2005 rating decision 
and SOC explained that September 10, 2004, was the date of 
the evaluation showing an increase in the severity of his 
service-connected posttraumatic stress disorder (PTSD) that 
rendered him unemployable.    

As previously indicated, the effective date will be the 
earliest date as of which it is factually ascertainable that 
an increase in disability had occurred, if the claim is 
received within one year from such date.  Otherwise, the 
effective date will be the date of receipt of claim.  As 
previously noted, the veteran first presented his claim for 
TDIU on December 15, 2004.  As such, the Board must determine 
whether the veteran would have been entitled to TDIU one year 
prior to December 15, 2004.  

The Board observes that the veteran did not have one service-
connected disability rated as 60 percent disabling prior to 
March 15, 2004.  Nor did he have at least one service-
connected disability ratable at 40 percent or more with 
sufficient additional disability to bring the combined rating 
to 70 percent or more.  In fact, prior to March 15, 2004, the 
veteran was only assigned a 50 percent disability evaluation 
for PTSD; a 10 percent disability evaluation for bilateral 
hearing loss; and, a 10 percent disability evaluation for 
tinnitus.  However, a March 2005 rating decision later 
increased the veteran's disability evaluation to 40 percent 
for his bilateral hearing loss effective from March 15, 2004.  
As such, he did not meet the schedular requirements for TDIU 
until the March 2005 rating decision granted an increased 
evaluation, thereby giving him a combined evaluation of 70 
percent effective from March 15, 2004.  Therefore, the 
veteran did not meet the objective criteria for the award of 
TDIU until March 15, 2004.   The Board also notes that an 
April 2005 rating decision subsequently increased the 
veteran's disability evaluation to 70 percent effective from 
September 10, 2004.

Nevertheless, having failed to meet the objective criteria of 
38 C.F.R. § 4.16(a), prior to March 15, 2004, it then becomes 
necessary to consider the veteran's claim for a TDIU rating 
under the subjective criteria 38 C.F.R. § 4.16(b).  It is the 
established policy of VA 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.  38 C.F.R. § 4.16(b).  Therefore, rating 
boards should 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 § 4.16(a).  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).  
Consideration may be given to the veteran's education, 
special training, and previous work experience, but not to 
his age or to the impairment caused by nonservice-connected 
disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007); see 
also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole 
fact that a veteran is unemployed or has difficulty obtaining 
employment is not enough.  A high rating in itself is 
recognition that the impairment makes it difficult to obtain 
or keep employment.  The ultimate question, however, is 
whether the veteran is capable of performing the physical and 
mental acts required by employment, not whether he can find 
employment.  Van Hoose, 4 Vet App. at 363.

In this case, the evidence of record does establish that the 
veteran was unable to secure and follow a substantially 
gainful occupation by reason of his service-connected 
disabilities prior to September 10, 2004.  In this regard, 
the Board notes that a private psychotherapy note dated on 
February 5, 2004, indicated that the veteran had severe, 
chronic PTSD with major impairment, including the inability 
to work.  A private psychiatrist also wrote a letter on 
February 24, 2004, stating the veteran's diagnosis was 
chronic, delayed, severe PTSD and that he was unemployable 
due to the severity of his mental disorder.  Therefore, the 
Board finds that it was factually ascertainable that the 
veteran was unemployable due to his service-connected PTSD as 
of February 5, 2004.  

The Board has also considered that whether the veteran is 
entitled to an earlier effective prior to February 5, 2004.  
However, there is no medial evidence showing that the 
veteran's service-connected disabilities rendered him 
unemployable between December 15, 2003, and February 5, 2004.  
In fact, the claims file does not contain any medical 
evidence dated from December 15, 2003, to February 5, 2004.  
As such, it was not factually ascertainable that the veteran 
was unemployable due solely to his service-connected 
disabilities prior to February 5, 2004.  Therefore, the Board 
finds that February 5, 2004, is the correct date for the 
grant of TDIU.

Although the Board is mindful of the Court's decision in 
Floyd v. Brown , 9 Vet. App. 88, 96 (1996), that the Board is 
precluded from assigning an extraschedular rating in the 
first instance but rather must remand such cases to the RO to 
refer to the Director, Compensation and Pension Service, the 
Board notes that this is not an appeal of the denial of an 
extraschedular evaluation, but rather an appeal of the denial 
of an earlier effective date for the grant of TDIU.

Because the veteran did not specifically appeal the effective 
date for the schedular evaluations for bilateral hearing loss 
and PTSD in the March 2005 and April 2005 rating decisions, 
but rather only the effective date for TDIU, it might be said 
that the Board is allowing through the back door what it 
could not, given the Court's decision in Floyd, allow through 
the front door, even though VA has proposed changes to its 
regulations which , while not yet final, aim to extend the 
authority to the Board to grant extraschedular ratings in the 
first instance. 66 Fed. Reg. 49886 (October 1, 2001).  
Nevertheless, given the persuasive evidence of 
unemployability due to PTSD prior to September 10, 2004, in 
the form of a private psychotherapy note dated on February 5, 
2004, and the private psychiatrist's February 24, 2004 
letter, the Board finds that denial of this claim is not an 
option.  

Moreover, a remand would serve no useful purpose as the Board 
is not required to remand appeals for earlier effective dates 
for benefits to the RO for referral to other VA officials.  
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict 
adherence to requirements in the law does not dictate an 
unquestioning, blind adherence in the face of overwhelming 
evidence in support of the result in a particular case; such 
adherence would result in unnecessarily imposing additional 
burdens on VA with no benefit flowing to the veteran).  
Finally, and most importantly, the allowance of the earlier 
effective date in this case is not clearly at odds with 
caselaw, including Floyd, and does not in anyway prejudice 
the veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) 
(remands which would only result in unnecessarily imposing 
burdens on VA with no benefit flowing to the veteran are to 
be avoided); cf. Brady v. Brown, 4 Vet. App. 203, 207 (1993) 
(a remand is unnecessary even where there is error on the 
part of VA, where such error was not ultimately prejudicial 
to the veteran's claim); see Floyd, 9 Vet. App. at 96 (noting 
that "the Board's action...resulted in the granting of an 
extraschedular rating and thus did not result in prejudice to 
the veteran," and affirming the Board's grant of an 
extraschedular rating).


ORDER

An earlier effective date of February 5, 2004, for the grant 
of TDIU is granted.





____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs