Citation Nr: 0814770 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-40 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to October 30, 2003, for the grant of entitlement to a total disability rating based upon individual unemployability due to service- connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from October 1963 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 decision rendered by the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, granted entitlement to a total disability rating based upon individual unemployability (TDIU), effective from October 30, 2003. The veteran disagrees with the effective date assigned. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. VA received the veteran's current claim for entitlement to a TDIU on August 10, 2004. 3. Prior to October 30, 2003, the veteran was only service- connected for shingles (rated 10 percent disabling) and diabetes mellitus (rated 20 percent disabling). 4. The veteran did not meet the schedular criteria for TDIU benefits prior to October 30, 2003; and the evidence does not show that the veteran's service- connected shingles and diabetes mellitus precluded employment prior to October 30, 2003. CONCLUSION OF LAW The criteria for an effective date earlier than October 30, 2003, for an award of TDIU have not been met. 38 U.S.C.A. § 5110 (West. 2002); 38 C.F.R. §§ 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. The notification must also include the request that the claimant provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b) (2007). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA complied with notification responsibilities in regards to the veteran's claim for entitlement to TDIU in correspondence sent to the veteran in September 2004. This letter notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and requested that he send in evidence in his possession that would support his claim. Moreover, although the claim at issue now concerns whether the veteran is entitled to an earlier effective date for TDIU (as opposed to entitlement since that has been granted), VA is not required to provide additional VCAA notice concerning this downstream issue since VA already has given VCAA notice regarding the original claim. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The veteran received additional notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in the Dingess decision in correspondence received from the RO dated in April 2006. VA has also made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file consist of the veteran's service medical records, VA and private medical treatment records, and reports from VA examinations. The veteran has not identified any outstanding records for VA to obtain that were relevant to the claim and the Board is likewise unaware of such. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background & Analysis In a January 2005 rating action, the RO awarded the veteran a total disability rating based upon individual unemployability (TDIU), effective from October 30, 2003. The veteran contends that he is entitled to an effective date earlier than the date assigned. The effective date rules for an increased compensation claim also apply for a TDIU claim. Hurd v. West, 13 Vet. App. 449, 451 (2000). The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). TDIU benefits are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The instant formal claim for TDIU was received at the RO in August 10, 2004. At the time this claim was received, service connection was in effect for diabetes mellitus (rated 20 percent disabling), and for shingles (rated 10 percent disabling). On his VA Form 21-8940, Application for Compensation Based on Unemployability, the veteran stated he had been too disabled to work since January 1, 2000 due to disabilities of diabetes and peripheral neuropathy. Also on this form, the veteran indicated that he was a high school graduate, with truck driving school experience, and some college. The application reflects that he worked part-time in construction from February 2004 to March 2004, and from July 2003 to present; and as a semi driver from June 1996 to January 2000, both full and part time. In his written remarks attached to the application, the veteran alleged that his diabetes and undiagnosed peripheral neuropathy caused such severe leg pain that he stopped working full time and switched to short-term temporary jobs. He also noted that the side effects of his medication caused him to have to withdraw from his college courses in the spring of 2004. Based upon a thorough review of all the evidence of record, the Board finds entitlement to an earlier effective date for the award of entitlement to TDIU is not warranted. It is initially noted that the veteran filed a previous claim for TDIU in September 2002. In a March 2003 rating action, the RO denied a claim of entitlement to TDIU. The veteran did not appeal this decision and thus, it became final. See 38 C.F.R. § 20.201 (2007). There is no indication of any other unadjudicated formal or informal claim for TDIU prior to the claim received on August 10, 2004. The veteran has not claimed that any prior rating action contained clear and unmistakable error (CUE) and there is no obvious error upon the Board's review. Prior to October 30, 2003, service connection was in effect for only two disabilities: diabetes mellitus, rated 10 percent disabling from May 8, 2001 and 20 percent, from March 12, 2002; and shingles, rated 10 percent disabling from May 8, 2001. The combined rating from May 2001 was 10 percent, and 30 percent beginning in March 2002. Prior to October 30, 2003 then, the combined rating for the veteran's two service- connected disabilities was less than total and the veteran did not meet the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). Notably, it was not until the rating action of July 2004 (which granted service connection for peripheral neuropathy of the upper and lower extremities) that the veteran had a combined rating of 60 and thus met the criteria for percentage criteria for a TDIU. While the veteran has argued for a January 1, 2000 effective date for the award of a TDIU, it was not until October 30, 2003, that he met the objective schedular criteria for the award of TDIU. 38 C.F.R. § 4.16 (a), (b). The only other manner by which the veteran would be entitled to an effective date earlier than October 30, 2003, is if the evidence were to show that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to October 30, 2003. See 38 C.F.R. § 4.16 (2007). As indicated, the only disabilities for which the veteran was service-connected for, prior to October 30, 2003, were shingles and diabetes. Therefore, the evidence must show that the veteran was unemployable due to shingles and/or diabetes. The Board finds that there is no competent medical evidence on file, dated prior to October 30, 2003, which showed that the veteran was unemployable due solely to his shingles and diabetes. Private medical records include a May 2000 treatment record from Dr. K., which shows that the veteran was concerned about controlling his blood sugar. He indicated that he had a couple of episodes where he felt really poorly after meals. The physician indicated that the veteran had been seen in the fall of 1999 by another physician, who had expressed concern about the potential deleterious effects of the veteran's glucose. A record of Department of Transportation (DOT) examination conducted by Dr. K. in August 2001 reveals that the veteran indicated that he planned to drive trucks two more years. It was also noted that the veteran was attending college at this time. Dr. K. noted that the veteran seemed to be enjoying general good health and was monitoring his blood sugar successfully. Several additional private medical records reflect that the veteran was hospitalized on several occasions for chest pain and discomfort and angina, not shown to be related to the diabetes and shingles. The veteran's former employer, Koch Trucking, submitted a partially completed VA Form 21-4192, Request for Employer Information, in December 2002. The veteran's dates of employment were reported as February 1997 to November 2002. A supervisor noted the veteran had been employed as an over- the-road truck driver and worked 10 hours daily and between 60 and 70 hours per week. He also indicated the veteran had been discharged from employment due to an unreported accident. On an additional VA Form 21-4192 dated in February 2003, a Koch official indicated the veteran had last worked in November 2001 and had been involuntarily terminated. The veteran underwent a VA Agent Orange examination in February 2003. He denied any hospitalizations due to diabetes. He also stated that he was no longer able to drive over-the road upon his doctor's advice. The veteran indicated that he had a letter to show this, but the record does not indicate receipt by the VA examiner. The examiner opined that the veteran's diabetes was controlled with medication. He did not offer an opinion regarding the veteran's employability. The veteran underwent a VA skin examination in July 2003 during which he reported that he had to quit his job in 2000 due to combination of shingles and diabetes. The veteran also reported that during an outbreak his fatigue increases. No opinion was proffered regarding the veteran's employability. VA outpatient treatment records dated between December 2002 and October 2003 show that the veteran had no active shingle lesions during a new patient evaluation in February 2003. Follow-up records in May 2003 show that his diabetes was well-controlled and stable. Another note dated in September 2003 reflects that the veteran's blood sugars had been excellent and he was feeling quite well. The physican noted that he had returned to school and his diabetes was under excellent control. Based upon a review of the evidentiary record, the Board finds there is no competent medical evidence showing that the veteran was unable to work due to the service-connected disabilities of shingles and/or diabetes prior to October 30, 2003. It is noted that the veteran's former employer certified in December 2002 and February 2003, that the veteran was involuntarily separated from employment because of an unreported accident; not because of any health concerns. Also, the veteran has not submitted any medical evidence from the medical provider whom he alleges advised him to cease employment due to complications from the diabetes. Absent such evidence showing the veteran was unable to work due to complications from the shingles and diabetes prior to October 30, 2003, an earlier effective date for the TDIU is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to October 30, 2003, for TDIU is denied. ____________________________________________ Dennis F. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs