Citation Nr: 0813683	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  05-07 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUES

1.  Entitlement to an effective date earlier than May 31, 
2001, for the grant of service connection for post-traumatic 
stress disorder (PTSD).  

2.  Entitlement to an effective date earlier than September 
9, 2003, an award of a total disability rating based on 
individual unemployability (TDIU) due to a service-connected 
disabilities.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The veteran served on active duty from September 1965 to June 
1971.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from December 2003 and June 2004 rating 
decisions of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Buffalo, New York that granted service 
connection for PTSD, evaluated as 70 percent disabling 
effective May 31, 2001, and awarded a total disability rating 
based on individual unemployability (TDIU), effective 
September 9, 2003.  The veteran perfected a timely appeal of 
these determinations, challenging the effective dates of 
these awards.


FINDINGS OF FACT

1.  In September 1998, the RO denied the veteran's claim of 
service connection for PTSD.  The RO stated that there was no 
evidence that the veteran had engaged in combat, and there 
was no evidence of a confirmed diagnosis of post-traumatic 
stress disorder.  The veteran was notified of this decision 
and of his appellate rights, but did not file a Notice of 
Disagreement, and the decision became final.  

2.  On May 31, 2001, the RO received the veteran's 
application to reopen the previously denied claim of 
entitlement to service connection for PTSD.  

3.  The evidence of record does not demonstrate the veteran's 
service-connected disabilities rendered him unemployable 
prior to September 9, 2003, as the veteran stopped working on 
September 8, 2003.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than May 31, 
2001, for the grant of service connection for PTSD, have not 
been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.155(a), 3.400 (2007).  

2.  The criteria for an effective date earlier than September 
9, 2003, for an award of a total disability rating based on 
individual unemployability due to service-connected 
disabilities are not met.  38 U.S.C.A. §§ 1155, 5110 (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 
4.16 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's 
duty to notify and assist the veteran in the development of a 
claim.  VA regulations for the implementation of the VCAA 
were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, and 3.326(a).

The notice requirements require VA to notify the veteran of 
any evidence that is necessary to substantiate the claim, as 
well as the evidence VA will attempt to obtain and which 
evidence he is responsible for providing.  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  The requirements apply to 
all five elements of a service connection claim: veteran 
status, existence of a disability, a connection between the 
veteran's service and the disability, degree of disability, 
and effective date of the disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  Such notice must be 
provided to a claimant before the initial unfavorable 
decision on a claim for VA benefits by the agency of original 
jurisdiction (in this case, the RO).  Id; see also Pelegrini 
v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA 
notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Id.

Both of the veteran's claims for earlier effective dates are 
downstream issues from his claims for entitlement to (1) 
service connection for PTSD and (2) a TDIU.  For example, VA 
awarded service connection for PTSD and the veteran 
subsequently filed a notice of disagreement arguing he 
warranted an earlier effective date.  The RO also awarded a 
TDIU and the veteran filed a notice of disagreement arguing 
he warranted an earlier effective date.  In these type of 
circumstances, VA is not required to issue a new VCAA letter.  
VAOPGCPREC 8-2003 (Dec. 2003).  Rather, the provisions of 
38 U.S.C.A. § 7105(d) require VA to issue a statement of the 
case if the disagreement is not resolved.  Id.  VA issued a 
statement of the case addressing both effective-date claims 
in December 2004.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  Id.  VA obtained VA 
clinical records dated from 1998 to 2004.  VA provided the 
veteran with examinations in connection with his claims for 
entitlement to PTSD and entitlement to a TDIU.  It did not, 
however, provide the veteran with an examinations in 
connection with his claims for an earlier effective date, as 
these issues would not warrant an examination.  See 
38 U.S.C.A. § 5103A(d)(2) (West 2002).  Specifically, a claim 
for an earlier effective date does not meet the statutory 
requirements for entitlement to a VA examination or medical 
opinion.  See 38 U.S.C.A. § 5103A(d)(2)(A) - (C) (West 2002); 
see also 38 C.F.R. § 3.159(c)(4)(A) - (C) (2007).  

The veteran has not identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claims that has not 
been obtained.  Hence, no further notice or assistance to the 
veteran is required to fulfill VA's duty to assist the 
veteran in the development of the claims.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Earlier Effective Date for PTSD.

Generally, the effective date of an award based on an 
original claim or a claim reopened after final adjudication 
shall be fixed in accordance with the facts found, but shall 
not be earlier than the date of receipt of application 
therefor.  38 U.S.C.A. § 5110(a); Rodriguez v. West, 189 F.3d 
1351, 1354 (Fed. Cir. 1999).  

The effective date for a grant of service connection is the 
day following separation from active service or the date 
entitlement arose, if the claim is received within one year 
of separation from service.  If the claim is not received 
within one year of separation from service, the effective 
date for a grant of service connection is the date of receipt 
of the claim, or the date entitlement arose, whichever is 
later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

In addition, where new and material evidence is received 
after final disallowance, the effective date will be the date 
of receipt of the new claim or the date entitlement arose, 
whichever is later.  38 C.F.R. § 3.400(q)(ii), (r).  

In this case, the evidence shows that the veteran filed a 
claim for entitlement to service connection for PTSD that was 
denied by the RO in September 1998.  The RO stated that there 
was no evidence that the veteran had engaged in combat, and 
there was no evidence of a confirmed diagnosis of post-
traumatic stress disorder.  The veteran was notified of this 
decision and of his appellate rights, but did not file a 
Notice of Disagreement, and the decision became final. 

On May 31, 2001, the RO received the veteran's application to 
reopen the previously denied claim of service connection for 
PTSD.  In a December 2003 rating decision, the RO granted 
service connection for PTSD, effective on May 31, 2001.  

Here, the Board notes that the veteran was awarded service 
connection for PTSD effective May 31, 2001, which is the date 
of receipt of his application to reopen the previously denied 
claim.  Applying the provisions of 38 U.S.C.A. § 5110(a), the 
RO granted the an effective date of May 31, 2001 for the 
award of service connection for PTSD.  See also 38 C.F.R. 
§ 3.400(q), (r).  

The veteran contends that an effective date of March 1998, 
which is the date the veteran filed his first claim for PTSD, 
is warranted.  He asserts that his service personnel records 
were not of record at the time of the September 1998 denial, 
and if they had been of record at that time, he would have 
been granted service connection.  The regulation applicable 
to this argument is 38 C.F.R. § 3.156(c).  Under that 
regulation, it states that where new and material evidence 
consists of a supplemental report of service department 
records, received before or after the decision has become 
final, the former decision will be reconsidered by the 
adjudicating agency of original jurisdiction.  38 C.F.R. § 
3.156(c) (2007).  This comprehends official service 
department records which presumably have been misplaced and 
have now been located and forwarded to VA.  Id.

The Board notes that the provisions under 38 C.F.R. 
§ 3.156(c) changed in September 2006, which is during the 
appeal period.  In VAOPGCPREC 3-2000 (April 2003), VA's 
General Counsel held that when a change in a regulation 
occurs during the appeal period, a determination as to 
whether the intervening change is more favorable to the 
veteran should be made.  If the amendment is more favorable, 
that provision should be applied for periods from and after 
the effective date of the regulatory change; and the prior 
regulation should be applied to rate the veteran's disability 
for periods preceding the effective date of the regulatory 
change.  Id.  Here, the veteran's claim was pending prior to 
the change in the regulation.  Thus, it will apply the former 
provisions to the veteran's claim.

The veteran is correct in stating that some of the evidence 
that constituted new and material evidence were service 
personnel records that were not in the claims file at the 
time of the September 1998 rating decision.  However, also 
lacking at the time of the September 1998 rating decision was 
a diagnosis of PTSD.  There are VA treatment records, dated 
in March 1998, that show findings by a VA examiner that the 
veteran had some symptoms of PTSD but did not have "all the 
symptoms of" PTSD.  This examiner stated the veteran would 
be referred to Dr. H, who had more expertise in this area.  A 
clinical record from Dr. H shows he diagnosed the veteran 
with anxiety and chronic depression in April 1998.  The first 
confirmed diagnosis of PTSD is not shown until after May 
2001.  Thus, even if the March 1998 claim for service 
connection for PTSD was reconsidered, the effective date 
would not be earlier than May 31, 2001 based upon facts 
found.  Stated differently, without a diagnosis of PTSD, 
service connection for such disability could not be granted 
as early as March 1998.  Again, the evidence of record 
establishes that the veteran was diagnosed with PTSD after 
May 31, 2001.  Thus, service connection for PTSD may not be 
granted prior to that date. 

For the foregoing reasons, the veteran's claim of entitlement 
to an earlier effective dated for the award of service 
connection for PTSD is denied.  

III.	Earlier effective date for TDIU.

Except as otherwise provided, the effective date of an award 
of compensation based on an original claim, a claim reopened 
after final disallowance, or a claim for increase 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 statutory provision is 
implemented by regulation which provides that the effective 
date for an evaluation and award of compensation based on an 
original claim, a claim reopened after final disallowance, or 
a claim for increase will be the date of receipt of the claim 
or the date entitlement arose, whichever is the later.  38 
C.F.R. § 3.400.

Generally, total disability will be considered to exist when 
there is present any impairment of mind or body that is 
sufficient to render it impossible for the average person to 
follow a substantially gainful occupation.  38 C.F.R. 
§ 3.340.  Total disability ratings are authorized for any 
disability or combination of disabilities for which the 
Schedule for Rating Disabilities prescribes a 100 percent 
disability evaluation, or, with less disability, if certain 
criteria are met.  Id.  Where the schedular rating is less 
than total, a total disability rating for compensation 
purposes may be assigned when the disabled person is 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, or if there are two or more 
disabilities, there shall be at least one ratable at 40 
percent or more, and sufficient additional disability to 
bring the combined rating to 70 percent or more.  38 C.F.R. 
§§ 3.340, 3.341, 4.16(a).  In exceptional circumstances, 
where the veteran does not meet the aforementioned percentage 
requirements, a total rating may nonetheless be assigned upon 
a showing that the individual is unable to obtain or retain 
substantially gainful employment.  38 C.F.R. § 4.16(b).

If the schedular rating is less than 100 percent, the issue 
of unemployability must be determined without regard to the 
advancing age of the veteran.  38 C.F.R. §§ 3.341(a), 4.19.  
Marginal employment shall not be considered substantially 
gainful employment.  38 C.F.R. § 4.16(a).  Factors to be 
considered are the veteran's education, employment history, 
and vocational attainment.  Ferraro v. Derwinski, 1 Vet. 
App. 326, 332 (1991).  In reaching such a determination, 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) (emphasis added).  Consideration may not be given to 
the impairment caused by nonservice-connected disabilities.  
See 38 C.F.R. §§ 3.341, 4.16, 4.19.

Here, the veteran's service-connected disabilities effective 
prior to September 9, 2003, consisted of PTSD, rated as 70 
percent disabling; hemorrhoids, rated as 10 percent 
disabling; headaches, rated as 10 percent disabling; 
residuals of fractured mandible with TMJ, rated as 10 percent 
disabling; and bilateral hearing loss and left lower leg skin 
condition, each rated as noncompensably disabling.  The 
veteran, therefore, met the criteria for a total rating for 
compensation based upon individual unemployability as early 
as May 31, 2001.  

Total disability will be considered to exist when there is 
present any impairment of mind or body that is sufficient to 
render it impossible for the average person to follow a 
substantially gainful occupation.  38 C.F.R. § 3.340.  Except 
as otherwise provided, the effective date of an award of a 
claim for increase 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 effective date a claim for increase will be the date of 
receipt of the claim or the date entitlement arose, whichever 
is the later.  38 C.F.R. § 3.400.

In this case, the veteran's claims file indicates that the 
veteran worked as an instructor at Monroe Community College 
until September 2003.  His last day of work was September 8, 
2003.  The effective date for the veteran's award of a total 
rating for compensation based upon individual unemployability 
was made effective the very next day.  This is the first date 
that entitlement to this benefit was found.  Prior to this 
date, the veteran was employed.  The basis of awarding a 
total rating for compensation based upon individual 
unemployability is a finding that the service-connected 
disabilities cause the veteran to be unable to obtain and 
sustain employment.  It cannot be found that the veteran was 
unable to obtain and sustain gainful employment prior to 
September 9, 2003, as he was gainfully employed.   

Based on the foregoing, the Board finds that entitlement to 
an effective date earlier than September 9, 2003, for the 
grant of entitlement to a total disability rating based on 
individual unemployability due to service-connected 
disabilities must be denied.


ORDER

1.  An effective date earlier than May 31, 2001, for the 
grant of service connection for PTSD is denied.  

2.  Entitlement to an effective date earlier than September 
9, 2003, for the grant of entitlement to a total disability 
rating based on individual unemployability due to 
service-connected disabilities is denied. 



____________________________________________
Alexandra P. Simpson
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs