Citation Nr: 0814265 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-18 549A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than October 28, 1999, for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Clayte Binion, Attorney at Law ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from January 1979 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In a September 2001 rating action, the RO increased the veteran's disability evaluation from zero percent to 20 percent for lumbosacral strain with degenerative disc disease (DDD) due to trauma under Diagnostic Codes (DCs) 5295-5293 (formerly coded as DC 5295), effective from November 5, 1999. The veteran filed a notice of disagreement (NOD) as to the evaluation and effective date assigned. In a rating decision issued in June 2002, the RO increased the evaluation for the back disorder to 60 percent disabling, effective from October 28, 1999. The RO also awarded entitlement to a TDIU effective from October 28, 1999. The veteran, through his attorney, indicated that he was satisfied with the 60 percent schedular evaluation assigned and with the TDIU award; however, he filed an NOD as to the effective date assigned for that rating for his back disability, and as to the effective date assigned for TDIU. The Board in a November 2005 decision denied claims for effective dates earlier than October 28, 1999, both for assignment of a 60 percent evaluation for the low back disorder, and for the grant of TDIU. The veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court) and, pursuant to a Joint Motion for Remand filed by the appellant's attorney and the VA General Counsel and approved by order of the Court in September 2007, the Board's November 2005 decision was vacated in part. Specifically, the appellant abandoned the claim for an earlier effective date for assignment of a 60 percent evaluation for a low back disorder, but the Board decision was vacated to the extent of its denial of an earlier effective date for the grant of TDIU. The present decision accordingly addresses the remaining issue of entitlement to an effective date earlier than October 28, 1999, for the grant of TDIU. FINDINGS OF FACT 1. The RO's grant of a 60 percent rating for the veteran's low back disorder from October 28, 1999, effectively granted service connection for degenerative disc disease of the lumbar spine from that date, and assigned a 60 percent evaluation for a low back disorder based on that degenerative disc disease. 2. It is not disputed that prior to October 28, 1999, the veteran did not have one service-connected disability ratable at 60 percent or more, nor did he have two or more service- connected disabilities with at least one service-connected disability ratable at 40 percent or more and the combined service-connected rating at least 70 percent or more. 3. The veteran has no pending claim before the Board for any of the following: a higher schedular rating for service- connected disabilities prior to October 28, 1999; an effective date earlier than October 28, 1999, for assignment of a particular schedular rating for a service-connected disability; an earlier effective date than October 28, 1999, for service connection for any disorder; or service connection for any disorder. CONCLUSION OF LAW The criteria for an effective date prior to October 28, 1999, for the award of TDIU have not been met. 38 U.S.C.A. §§ 5100-5103A, 5106, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.400(a),(b),(o) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to the initial RO decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent complete VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC. Mayfield; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The notice requirements of the VCAA 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 v. Nicholson, 19 Vet. App. 473, 489 (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. 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. See Dingess, supra; Pelegrini, supra. As noted above, the Court held in Dingess that VA is also required to provide notice as to the effective date element of the claim prior to the initial adjudication of the claim. In this case, a VCAA notice on a claim for entitlement to service connection for degenerative disk disease (DDD) was provided to the veteran in March 2001, prior to the September 2001 rating decision wherein the RO granted entitlement to service connection for DDD and assigned a 20 percent disability rating with an effective date of November 5, 1999. The veteran filed an NOD as to the percentage rating and the effective date assigned. Then, as noted above, the rating was increased to 60 percent with an effective date of October 28, 1999, and a TDIU was awarded with the same effective date of October 28, 1999. The issue currently before the Board arose from the veteran's disagreement with those effective dates. It does not appear that applicable effective date notice was afforded prior to the initial rating action. However, the Court has also held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based upon interpretation of law, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003) ("Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision."). In this case, the facts relevant to the earlier effective date claim are not in dispute as they pertain to the application of law herein. The veteran and his attorney point to certain VA medical records as having raised earlier informal claims for TDIU. While the Board acknowledges the existence of these records and that these records indeed raise issues of employability, including the possibility of unemployability due solely to service-connected disabilities (the Board does not make that latter determination herein), the Board here denies the earlier effective date claim based on the failure to satisfy the requisite service-connected disability ratings at the time these medical records raised the issue of employability, to meet the 38 C.F.R. § 4.16(a) minimum schedular requirement for TDIU. On that basis an informal claim for TDIU cannot have been raised by the medical evidence to which the veteran and his attorney have made reference. See Norris v. West, 12 Vet. App. 413 (1999). Therefore, the Board finds that no reasonable possibility exists that any further assistance would aid the veteran in substantiating the claim, and that VA has no further duty to notify him of the evidence needed to substantiate his claim. See 38 U.S.C.A. § 5103A. II. Claim of Entitlement to EED for TDIU The veteran contends, through counsel, that he is entitled to an earlier effective date for TDIU based on VA medical records raising the issue of TDIU, which the veteran contends should have been construed as informal claims for TDIU, and on which basis, the veteran contends, an earlier effective date than the assigned October 28, 1999, should be granted for TDIU. Upon thorough review of the record, the veteran's attorney points to four VA medical records as supporting an informal claim for TDIU: two VA progress notes, both dated May 7, 1985; a December 30, 1985, treatment record; and a July 1993 treatment record. However, as discussed below, the Board finds that these records cannot serve as informal claims for TDIU, because the veteran at those times was not yet awarded service-connected disability ratings meeting the minimum schedular criteria for a 38 C.F.R. § 4.16(a) TDIU claim. The effective date of a grant of service connection shall be the date of receipt of claim or the date at which entitlement arose, whichever is later. The effective date for entitlement to an increased rating for a service-connected disorder is the earliest date as of which it was factually ascertainable that an increase had occurred, provided a claim is received within one year of such date. Otherwise, the effective date for such an increased rating is the date of receipt of the claim for increase. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o)(2); Quarles v. Derwinski, 3 Vet. App. 129 (1992). As regards claims for increased ratings for service-connected disabilities, VA medical records are considered to be constructively of record in the claims folder on the dates they are created at a VA medical facility. Private (i.e., non-VA) clinical records are deemed to be a part of the claims folder on the dates they are received by the RO. 38 C.F.R. § 3.157(b) (2007). A claim is defined 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). VA records will be accepted as an informal claim for benefits once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) and (b)(1); see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) (38 C.F.R. § 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records could not be construed as an informal claim); Kessel v. West, 13 Vet. App. 9, 23 (1999) (where there has not been a prior allowance or disallowance of a claim for service connection for a claimed condition, any examination reports could not be accepted as an informal claim). A claim for TDIU is a claim for increased rating for purposes of assigning an effective date, pursuant to 38 U.S.C.A. § 5110(b)(2), with an effective date to be assigned up to one year prior to the date of receipt of claim. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). However, as discussed below, the an informal claim for TDIU is not the same as an informal claim for increased rating where the informal claim is based on medical evidence received as opposed to explicit informal claim in a submitted statement by the veteran. A TDIU rating may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it must be ratable at 60 percent or more, and if there are two or more disabilities at least one disability must be ratable at 40 percent or more and the combined rating must be at least 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007), the Court held that when a reasonably raised claim has not itself been adjudicated previously, it remains pending "until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' of the same disability." Id., citing 38 C.F.R. § 3.160(c); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); Myers v. Principi, 16 Vet. App. 228 (2002). In this case, the veteran contends that an informal claim for TDIU was reasonably raised by medical records prior to October 28, 1999. However, the rule in Norris v. West, 12 Vet. App. 413 (1999), as applicable in this case, precludes finding an informal claim for TDIU on that basis prior to October 28, 1999. The Court in Norris recognized that there can be an informal claim for TDIU where the veteran has been service-connected for disability and meets the minimum schedular criteria under 38 C.F.R. § 4.16(a) for TDIU, and a VA examination report indicates that the veteran is unemployable due to the disability. Id. at 421; as discussed in Ingram, 457 F.3d at 244. In the present case, however, the veteran did not meet the minimum schedular criteria under 38 C.F.R. § 4.16(a) for TDIU prior to October 28, 1999. The Joint Motion for Remand in this case calls attention to other cases which have been distinguished from Norris, but these are ultimately immaterial. As the Court pointed out in Ingram, the subsequent case of Roberson v. Principi, 251 F.3d 1378, 1383-84 (2001) was distinguished from Norris, in that in Norris the prior pending informal claim for TDIU raised by medical evidence indicating unemployability was preserved until such issue was subsequently adjudicated because there was no intervening determination on a claim for an increased rating, whereas in Roberson, an informal claim for TDIU arising from a medical record was held not to survive a subsequent RO (initial) rating decision not granting a total rating. Ingram, 21 Vet. App. at 249; citing Roberson, supra. As also recognized in Ingram, the Deshotel case made it clear that, where an RO decision acts on one of two raised claims but does not specifically address the second claim, that "second claim is deemed denied, and the appeal period begins to run." Deshotel, 457 F.3d at 1261; as cited by Ingram, 457 F.3d at 249. The Court in Ingram was careful to note that Robison and its line of cases was distinguishable from Norris based on the absence in Norris of an intervening determination as to an underlying disability to vitiate preservation of a TDIU claim, as contrasted with the presence of such an intervening determination in Robison. Ingram, supra, at 249. However, the Board does not here concern itself with extinguishment of a prior informal claim, but rather with whether a prior informal claim for TDIU was present at all. In summary, the Court in Ingram did not derogate from the conclusion that Norris was still good law with respect to its delineation of when an informal claim for TDIU is raised by the medical record, just as Roberson is still good law with respect to when such an informal claim, once raised, is impliedly denied. Id. Here, however, questions of implied denial or deemed denial (or other basis of extinguishment) of a prior informal claim are not applicable, because, as the Board determines herein, there was no prior informal claim for TDIU. In the present case, relying on Norris, the Board finds that because the veteran was not assigned schedular ratings meeting the minimum schedular criteria for a claim for TDIU under 38 C.F.R. § 4.16(a) until the October 28, 1999, effective date of assignment of a 60 percent disability evaluation for lumbosacral strain with degenerative disc disease, any medical record prior to that date could not constitute an informal claim for TDIU. Norris, 12 Vet. App. at 421 (1999). Because the Board herein finds that prior medical evidence could not have raised an informal claim for TDIU prior to October 28, 1999, there is no basis for an earlier effective date for TDIU prior to October 28, 1999, in the absence of a collateral attack on prior rating decisions (e.g., on the basis of clear and unmistakable error). There is no pending collateral attack on prior rating decisions denying service connection or increased evaluations for disabilities. By the September 2007 Joint Motion, the parties recognized as abandoned a claim for an earlier effective date than October 28, 1999, for a 60 percent rating for lumbosacral strain with degenerative disc disease. Under the aw applicable to this case, the veteran met the minimum schedular criteria for a TDIU claim under 38 C.F.R. § 4.16(a) on October 28, 1999, which was the date the veteran's attorney submitted a request to reopen a claim for service connection for degenerative disc disease. Based on that request to reopen, the RO by an October 2003 decision granted a 60 percent evaluation for lumbosacral strain with degenerative disc disease effective from October 28, 1999, impliedly based on the grant of service connection for degenerative disc disease from that date. Thus, the veteran met the minimum schedular basis for TDIU under 38 C.F.R. § 4.16(a) by the grant of service connection for degenerative disc disease, effective on and after October 28, 1999. Accordingly, the appropriate rule for considering the effective date in such a circumstance is the rule governing the effective date for a grant of service connection, which (for purposes of this determination) is the date of receipt of a claim or a request to reopen a previously finally denied claim, or the date on which entitlement occurred, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The prior Board decision in April 1997 denying reopening of a claim for service connection for degenerative disc disease was final, and hence there is no basis for an effective date earlier than October 28, 1999, the date of the next receipt of a request to reopen a claim for service connection for degenerative disc disease. 38 C.F.R. § 3.400. The veteran is not currently contesting the effective date for the grant of service connection for degenerative disc disease, and that issue is not before the Board. Accordingly, there is no basis in law for a grant of an effective date for TDIU earlier than the October 28, 1999, date assigned. 38 C.F.R. § 3.400. Earlier medical evidence indicating unemployability could not constitute an informal claim for TDIU because the veteran did not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a), prior to October 28, 1999. Norris. The Federal Circuit in Roberson also stated, "Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU." Roberson, 251 F.3d at 1384. However, as the Court in Ingram noted, Roberson is distinguishable from Norris, in that while Norris addressed informal claims presented by the medical record following an adjudication of a rating claim, Roberson addressed a simultaneous submission of a claim for service connection and evidence raising TDIU. The Roberson case of a claim for a disability and simultaneous submission of evidence raising TDIU is not this case. The evidence pointed to by the appellanr prior to October 28, 1999, as raising TDIU does not in the instant case serve as that component to "identify the benefit sought" pursuant to 38 C.F.R. § 3.155(a), because there was no concurrent, distinct claim for TDIU submitted by the veteran. Rather, the veteran here wishes the medical evidence raising TDIU to stand alone as an informal claim for TDIU. For that purpose, the Norris requirement of a disability rating meeting the schedular requirements of 38 C.F.R. § 4.16(a) must be met, and that requirement was not met in this case prior to October 28, 1999. While the Court-approved Joint Motion in this case cites to Dalton v. Nicholson, 21 Vet. App. 23, that case does not alter the Board's analysis herein. In that case, evidence of unemployability was recognized as evidence of increased disability. That rule does not alter the requirement that, before medical evidence of unemployability may serve as an informal claim for TDIU, the claimant must have been assigned the minimum schedular rating meeting the criteria for TDIU under 38 C.F.R. § 4.16(a). Norris; cf. Dalton. The Board notes that rule in Norris, delineating the requirements for a medical record to serve as an informal claim for TDIU, is appropriate in the veteran's case. The evidentiary record illustrates the inherent difficulties in relying on statements by medical providers, whether these are merely recordations of the veteran's own statements to the provider concerning his capacity for employment, or are summary comments by the provider based upon the limited medical review which may be incident to medical treatment or evaluation. When a medical professional is not specifically tasked with making a judgment based upon a careful review of the entire evidentiary record, the statements regarding employability as recorded within the medical record may not be of such a nature as to legitimately raise the TDIU issue for purposes of an informal claim. Here, an October 1998 VA examination of the veteran's spine for compensation purposes is illustrative of the problem in this case. The examiner noted that the veteran had a pained demeanor, which was not necessarily representative of the underlying level of disability or even the level of pain experienced, but rather was representative of the veteran's presentation, or manner of self-expression as to how he felt. The examiner then expressed doubt as to whether any employer would hire an individual who displayed such a painful demeanor. There is no support in the law for a finding that such a comment by the VA examiner constitutes an informal claim for TDIU. Such comments by examiners are perhaps overly broad, and do not necessarily speak to actual employment capacity due to service-connected disabilities, or to any intention with regard to claims and benefits on the part of the veteran. Also in that same record, the examiner went on to opine that he believed the veteran was capable of sedentary work. To the extent the latter comment is probative, it cuts against a claim for TDIU arising from that record. This is why indistinct or indefinite statements addressing issues of employment capacity within medical records, whether with intent to address issues of employability as raised by the veteran or not, invariably present no clear basis for discerning whether a claim for TDIU has been raised. The Norris rule, requiring that the veteran meet the minimum rating requirements for a 38 C.F.R. § 4.16(a) TDIU claim at the time of a medical record raising the issue in order for that medical record to serve as an informal claim for TDIU, serves as a useful compromise, avoiding the difficult circumstances where, as here, an earlier effective date claim for TDIU is presented, and multiple medical records at various times in the past have mentioned the veteran's employment, or lack thereof, without any clarity of intent, and where service-connected disabilities were not then sufficiently rated to trigger TDIU eligibility. Thus, the Norris rule preserves judicial efficiency by avoiding overly- broad interpretations of when an informal claim for TDIU is raised, and thereby avoiding post hoc adjudications of meritless claims that were never actually raised. The veteran's representative has argued that 38 C.F.R. § 3.157(b)(1) must be considered as applicable to the present earlier-effective-date claim. However, 38 C.F.R. § 3.157(b)(1) provides that the date of VA examination or hospitalization may serve as the effective date of receipt of a claim for an increased rating or a claim to reopen, as an informal claim, provided the report relates to a disability for which service connection has already been established, or provided that a claim specifying the benefit sought is received within one year thereafter. 38 C.F.R. § 3.157(b)(1). This regulation thus provides for a basis for an effective date within a year prior to receipt of a formal or informal claim for an increased rating, based on medical evidence. It does not afford a basis for considering the medical record itself to be an informal claim. The veteran's claim of entitlement to an earlier effective date for TDIU is barred by law, and there is no dispute as to the underlying facts. Under such circumstances, his claim of entitlement to VA benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date for TDIU earlier than October 28, 1999, is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs