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