Citation Nr: 0814479 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-16 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an effective date prior to June 7, 2001 for a total rating based on individual unemployability due to service connected disabilities (TDIU). ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran served on active duty from October 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This appeal stems from an August 2003 rating action, wherein the RO granted the veteran's claim for TDIU, and assigned an effective date of June 7, 2001. The veteran's appeal was previously before the Board in April 2007. The Board denied entitlement to increased evaluations for the veteran's hearing loss and tinnitus, but increased the evaluation for PTSD to 100 percent. The Board further noted that this rendered the claim for TDIU moot for the period that the 100 percent schedular evaluation was in effect, which made the effective date for TDIU inextricably intertwined with the effective date for the 100 percent evaluation for PTSD. The Board then remanded the issue of an earlier effective date for TDIU in order for the RO to set an effective date for a 100 percent evaluation for PTSD. This was accomplished in a July 2007 rating decision that assigned an effective date of June 7, 2001. The issue of entitlement to an earlier effective date for TDIU has now been returned for additional consideration. The veteran was formerly represented by a private attorney, Richard A. LaPointe. In a March 2006 memorandum the attorney reported that he was no longer representing the veteran in the instant appeal. The record does not contain written notice to the veteran of the attorney's withdrawal of representation. See 38 C.F.R. § 20.608(a) (2007) (providing that a representative can withdraw as representative prior to certification of the appeal upon written notice to VA and the claimant). The record, however, discloses that the veteran was informed of the withdrawal inasmuch as he subsequently sought the assistance of veterans service organizations in preparing his appeal, although he declined opportunities to appoint these organizations as his representative. The veteran received further notification when this matter was noted in the Board's April 2007 decision, but he has not indicated that he desires representation. FINDINGS OF FACT 1. VA treatment records dated March 16, 1999 constitute an informal claim for TDIU. 2. The veteran's service connected disabilities on March 16, 1999 were PTSD, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling, and hearing loss, rated as zero percent disabling. There was a combined evaluation of 60 percent. 3. The veteran's PTSD was ratable as 70 percent from March 16, 1999, which results in the schedular criteria for TDIU being met. 4. The earliest date of which it is factually ascertainable that the veteran was unemployable is March 16, 1999. CONCLUSION OF LAW The criteria for an effective date of March 16, 1999, but no earlier, have been met for the veteran's TDIU. 38 C.F.R. §§ 3.400, 3.341(a), 4.16, 4.19, 4.130, Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VCAA notice must inform the claimant of any information and evidence (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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 U.S.C.A. § 5103(a) (West 2002); Pellegrini v. Principi, 18 Vet. App. 112 (2004); 38 C.F.R. § 3.159(b) (2007). The RO provided VCAA notice in an August 2002 letter to the veteran. The August 2002 letter provided notice of the evidence necessary to substantiate his claim for TDIU. The letter also advised the veteran of what evidence he was responsible for providing and what evidence VA would undertake to obtain, and told him to advise VA of any evidence or information he wanted that agency to obtain for him, and invited him to send the evidence itself. He was thereby advised to submit relevant evidence in his possession. The veteran also received VCAA notification pertaining to the evidence necessary to substantiate a claim for an earlier effective date in a July 2006 letter. His claim was readjudicated in a December 2007 supplemental statement of the case. However, any deficiencies in the notification for the effective date appeal are not prejudicial to the veteran's claim. In Dingess v. Nicholson, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, [VCAA] notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Regarding VA's duty to assist the veteran with his claim, all pertinent and identified records have been obtained, including VA treatment records dating to several years before he submitted his initial claim for compensation to VA. In addition, in August 2006, the RO agreed to give the veteran an additional sixty days to submit evidence before deciding on his claims. The veteran failed to submit any further information in support of the claims within tolling of the 60 day period. There is no indication that there is any outstanding evidence pertinent to the claim on appeal. Therefore, the duty to assist has been met, and the Board will proceed with adjudication of the veteran's appeal. Earlier Effective Date The veteran has not made any specific contentions as to why he believes he is entitled to an effective date prior to June 7, 2001 for TDIU. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. The effective date of an increase in disability compensation is 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 is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App 511 (1997). A review of the record indicates that VA treatment records dated March 16, 1999 show treatment for the veteran's service connected PTSD and tinnitus. These records are state that the veteran was unable to work. 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, receipt of a report of examination or hospitalization by VA will be accepted as an informal claim for increased benefits or a claim to reopen. 38 C.F.R. § 3.157(b). In this case, entitlement to service connection for both PTSD and tinnitus had been established at the time of the March 16, 1999 VA treatment. Therefore, the Board finds that these records constitute a claim for TDIU. In order to determine whether or not it was factually ascertainable that there was an increase in disability within one year prior to the receipt of the claim, the requirements for a total rating must be examined. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule 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). A total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16(b). This is accomplished by consideration of extraschedular factors. 38 C.F.R. § 3.321. When the March 16, 1999 records were received, the veteran's service connected disabilities were PTSD, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling, and bilateral sensorineural hearing loss, rated as noncompensable. The combined evaluation was 60 percent. Thus, his ratings did not meet the percentage requirements for TDIU under 38 C.F.R. § 4.16(a). The record shows that he was not awarded ratings that met the percentage requirements until June 7, 2001, when the evaluation for PTSD was increased from 50 percent to 70 percent, which was the basis for the original grant of TDIU. The Board increased the schedular evaluation for PTSD to 100 percent in April 2007, also effective from June 7, 2001. While the veteran did not have a combined 70 percent evaluation, the Board must examine whether he had a disability that was "ratable" as at least 70 percent disabling, which would have brought his combined evaluation to at least the 70 percent level required for schedular consideration. The veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. A 70 percent evaluation is merited for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. The evidence includes VA treatment records dated 1999 and 2000. January 1999 records state that the veteran was experiencing PTSD and a recurrent depressive mood. His tinnitus made his nervousness worse. He experienced repeated depressive bouts. The veteran also experienced frequent flashbacks of his combat experiences, and chronic sleep disturbances due to nightmares about combat. He had guilt feelings for some of his actions in the war. The veteran was not acutely psychotic. The diagnoses included PTSD with dysthymia. The examiner assigned a score on the Global Assessment of Functioning (GAF) scale of 55. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV]. Although the VA examiner entered diagnoses of PTSD and dysthymia, a disability for which service connection has not been established (although the VA examiner found that it was contributed to by PTSD and service connected tinnitus), the Court has held that VA regulations require that, unless the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability, here PTSD, can be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). The March 16, 1999 VA treatment records note that the veteran's tinnitus exacerbated his PTSD. He experienced anxiety and tension, but was no direct threat to himself or others. The examiner stated however that the veteran was unable to work. May 1999 VA treatment records again note that the veteran was markedly tense, hypervigilant, anxious, and panicky. The tinnitus was still exacerbating his PTSD. He was not a danger to himself or others, but the examiner said that the veteran was unemployable. The veteran continued to be tense, hypervigilant, apprehensive, jumpy, and irritable. He had frequent bouts of depressed mood, with broken and restless sleep. Concentration was slightly impaired. The PTSD was exacerbated by tinnitus. VA treatment records dated September 1999 reveal that the veteran continued to experience similar symptoms. The examiner opined that the veteran was unemployable. Additional treatment records show that these symptoms continued through March 2000. The Board finds that the veteran's PTSD was ratable as 70 percent disabling prior to the June 7, 2001 date for which the 100 percent evaluation became effective. The symptoms of the veteran's PTSD were productive of occupational and social impairment in most areas. His symptoms included near constant depression, irritability, very poor sleep, nightmares, and flashbacks about his combat experiences. The March 16, 1999 examiner opined that the veteran was unemployable, which is evidence of occupational impairment. Therefore, as the veteran's symptomatology more nearly resembled that of the 70 percent evaluation instead of the 50 percent rating, the veteran had a disability that was ratable as 70 percent disabling, which means that his combined evaluation would have met the schedular criteria prior to both the current June 7, 2001 effective date, and at the time of the March 16, 1999 informal claim. The Board further finds that the evidence indicates that the evidence supports entitlement to a TDIU from March 16, 1999. As noted above, the effective date of an increase in disability compensation is 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 is the date of receipt of the claim. In this case, the earliest date in which it is factually ascertainable that the veteran was unemployable is March 16, 1999, when the VA examiner opined that the veteran was unable to work. This is also the date of the veteran's informal claim. Therefore, as the date unemployability was factually ascertainable and the date of the claim is the same, the effective date in this case is March 16, 1999. 38 C.F.R. § 3.400(o)(2). In reaching this decision, the Board notes that the claims folder includes VA treatment records dated prior to March 16, 1999. However, none of these records opine that the veteran's service connected disabilities make him unemployable. In fact, a March 1998 VA examination assigned a GAF score of 75. A GAF score of 71 to 80 represents a disability in which if symptoms are present, they are transient and expectable reactions to psychological stressors, with no more than slight impairment in social or occupational functioning. DSM-IV. This does not represent a level of impairment that is compatible with unemployability. There are no other records dated between March 1998 and March 1999 that opine that the veteran is unemployable and there is no earlier claim for TDIU. Therefore, the effective date must be March 16, 1999; the date of the VA treatment records which first demonstrated that the veteran was unemployable and which served as an informal claim for TDIU. 38 C.F.R. §§ 3.157(b), 3.400(o)(2). ORDER An effective date of March 16, 1999 for the veteran's TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs