Citation Nr: 0914005 Decision Date: 04/15/09 Archive Date: 04/24/09 DOCKET NO. 06-21 479A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the right lower extremity. 2. Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the left lower extremity. 3. Entitlement to an effective date earlier than September 23, 2002 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Sean A. Ravin, Esq. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Procedural history The Veteran served on active duty in the United States Army from December 1957 to November 1959. Bilateral lower extremity radiculopathy The Veteran was originally granted service connection for a lumbar spine disability in a March 1960 rating decision. In December 2004, the RO assigned separate 10 percent disability ratings for chronic L5 radiculopathy of the lower right and left extremities. An effective date of September 23, 2002 was established. The Veteran indicated his disagreement with the assigned effective date in a July 2005 letter. The Veteran has subsequently perfected an appeal as to these two issues. TDIU In a March 2006 decision, the Board granted the Veteran's claim of entitlement to service connection for TDIU. In a rating decision dated November 29, 2006 which implemented the Board's decision, the RO established an effective date of December 22, 2004. The Veteran disagreed with the assigned effective date. Subsequently, the RO issued a supplemental rating decision that established an effective date of September 23, 2002 for the Veteran's TDIU. The Veteran continued to express disagreement with this date. He perfected his appeal with the timely submission of his substantive appeal in March 2008. Hearing request The Veteran was scheduled to appear for a Board hearing in September 2008. He failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2008). Additionally submitted evidence In December 2008 the Veteran submitted additional evidence to the Board in the form of a private medical opinion. An accompanying letter from the Veteran's attorney specifically waived RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT 1. VA issued a Final Rule effective September 23, 2002 which allowed for separate ratings for orthopedic and neurologic disabilities. 2. The Veteran filed an informal claim of entitlement to TDIU on June 15, 2004. 3. As of September 23, 2002, the Veteran's combined disability evaluation was 60 percent, with all disabilities arising from a common etiology. 4. An effective date of September 23, 2002 has been assigned for separate disability ratings for radiculopathy of the lower extremities and for TDIU. CONCLUSIONS OF LAW 1. An effective date earlier than September 23, 2002 for the grant of service connection for radiculopathy of the right lower extremity is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114(a), 3.400 (2008). 2. An effective date earlier than September 23, 2002 for the grant of service connection for radiculopathy of the left lower extremity is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114(a), 3.400 (2008). 3. An effective date earlier than September 23, 2002 cannot be established for an increased disability rating for the Veteran's TDIU. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks effective dates earlier than the currently assigned September 23, 2002 for the grant of separate 10 percent disability ratings [in effect, service connection] for bilateral lower extremity radiculopathy, as well as for TDIU. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002). After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the Veteran was informed of VA's duty to assist him in the development of his claims in a letter dated July 12, 2007, whereby the Veteran was advised of the provisions of the VCAA. In any event, no VCAA notice is necessary in this case because, as is more thoroughly explained below, the facts are uncontroverted and the outcome of this earlier effective date claims depends exclusively on documents which are already contained in the Veteran's VA claims folder. While the Board notes that the above-mentioned July 2007 notice letter only addressed the issues of entitlement to an earlier effective date for bilateral lower extremity radiculopathy, the Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Such is the case here. No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. It is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA. Moreover, the Veteran has been represented by an attorney in this matter. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) [holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"]. The Veteran and his attorney have not indicated there is any outstanding evidence relevant to this claim. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. As was alluded to above, the outcome of the Veteran's earlier effective date claims rests with evidence which is already in the claims folder, which will be discussed below. There is no suggestion in the record or in communications from the Veteran or his attorney that any additional relevant evidence exists. General due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2008). The Veteran has been accorded ample opportunity to present evidence and argument on this matter. His failure to appear for a scheduled video teleconference with a Veterans Law Judge, and his subsequent failure to reschedule, is being treated as a withdrawal, as detailed in the Introduction. See 38 C.F.R. § 20.704(d) (2008). In short, the Board believes that the issues were properly developed for appellate purposes. Further development would be a useless exercise. Accordingly, the Board will proceed to a decision on the merits. Accordingly, the Board will proceed to a decision. 1. Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the right lower extremity. 2. Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the left lower extremity. Because these two issues involve the application of identical law to identical facts, the Board will address them together. Relevant law and regulations Effective dates - in general Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2008). Effective dates - liberalizing law The applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Where compensation is increased pursuant to a liberalizing law, the effective date of such increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act. See 38 C.F.R. §§ 3.114(a), 3.400(p) (2008). Analysis The RO has granted separate service connection for radiculopathy of the right and left lower extremities and assigned an effective date of September 23, 2002. The RO assigned the effective date in question because that was the effective date of the regulation allowing for separate ratings for neurologic disabilities apart from orthopedic disabilities. See the Schedule for Rating Intervertebral Disc Syndrome, Fed. Reg. 54345-54349 (Aug. 22, 2002). This final rule issued by VA was liberalizing in the sense that such specific separate ratings were not specifically provided for in previous regulations. [A general regulation, 38 C.F.R. § 4.25, previously allowed for separate disabilities arising from a single disease entity to be rated separately. The Court has referred to "the canon of interpretation that the more specific trumps the general". See Zimick v. West, 11 Vet. App. 45, 51 (1998); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005). ] The Veteran is seeking an earlier effective date for the grant of separate compensable disability ratings for bilateral lower extremity radiculopathy. He has not submitted any legal argument in support of his claim. Instead, it appears that the Veteran is relying on medical evidence, in particular medical statements from I.P.W., M.D. and C.N.B., M.D. for the proposition that he had bilateral lower extremity radiculopathy prior to September 2002. The Board does not necessarily dispute that the Veteran had bilateral lower extremity radiculopathy prior to September 2003. However, since the Veteran was granted service connection pursuant to a liberalizing regulation he is not entitled to an effective date prior to the effective date of the regulation. See 38 C.F.R. § 3.114 (2008). The Board adds that the Veteran has not contended, nor does the record on appeal reflect, that he ever filed a claim for service connection for radiculopathy, much less prior to September 2002. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits]. A plain reading of the December 2004 rating decision shows that the RO granted separate disability ratings on its own initiative, based upon the change in the regulations in September 2002. Accordingly, the Veteran is not entitled to an effective date earlier than September 23, 2002 for the separate grants of service connection for radiculopathy of the bilateral lower extremities. Since there is no legal basis upon which to award an earlier effective date, the Veteran's appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to an effective date earlier than September 23, 2002 for an award of TDIU. Relevant law and regulations The law and regulations pertaining to effective dates in general has been set forth above and need not be repeated. Effective dates - increased ratings A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in 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 date of receipt of the claim. See 38 C.F.R. § 3.400(o)(2) (2008). See also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). TDIU 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. See 38 C.F.R. § 4.16 (2008). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2008). A total disability rating for compensation 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, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a) (2008). Analysis As was noted in the Introduction, an effective date of September 23, 2002 was established for TDIU by the RO in January 2008. The RO indicated that the September 23, 2002 effective date was established as this was the first date that the Veteran was found to meet the schedular requirements for consideration of TDIU. [As of September 23, 2002, a combined 60 percent disability rating was established based on service-connected spinal disabilities plus the bilateral lower extremity radiculopathy discussed above. The combined 60 percent rating met the criteria for a schedular disability under 38 C.F.R. § 4.16(a) rating because all four service- connected disabilities stemmed from a common etiology.] The Veteran contends that he is entitled to an effective date prior to September 23, 2002 for the grant of TDIU. In support of his claim, the Veteran has submitted medical evidence indicating that he has been unable to work due to back problems since 1982. As further proof of Veteran's longstanding unemployability, the Veteran's attorney references the Veteran's March 1984 grant of Social Security disability benefits which went into effect in September 1982. Date of claim The record does not contain a specific TDIU claim. The Veteran and his attorney have pointed to none. Instead, in the March 2008 substantive appeal, the Veteran's attorney argued that an August 1989 effective date is appropriate because this was the date the Veteran filed a claim seeking an increased rating for his service-connected back disabilities. In essence, the Veteran's attorney asks the Board to read a TDIU claim into the August 1989 increased rating claim. Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran filed a claim for an increased rating for his service-connected lumbar spine disability in August 1989. He specifically asked the RO to "revaluate [his] disability for more compensation." He did not mention unemployability, and the attached medical reports did not mention employment. The Veteran's increased rating claim was denied in a September 1989 RO rating decision. The Veteran appealed. The September 1989 rating decision, the Veteran's notice of disagreement and the many subsequent adjudications of the increased rating claim by the RO, the Board and the Court made no mention of TDIU. In a June 15, 2004 letter, the Veteran's attorney indicated that the issue of entitlement to TDIU was on appeal before the Board. This appears to be the first time that TDIU was specifically mentioned in the record. The Veteran's attorney did not explain how or why the issue was purportedly in appellate status. The July 2004 Board decision noted that the issue of TDIU had thus been raised and had not been adjudicated by the RO. The Board referred the issue for initial consideration. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). VA's statutory duty to assist means that VA must liberally read all documents submitted to include all issues presented. See Verdon v. Brown, 8 Vet. App. 529, 533 (1996); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). However, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant. In this case, there is nothing in the communications made by or on behalf of the Veteran prior to the June 2004 letter from his attorney which expressly or impliedly raised the issue of TDIU. In particular, there is nothing in the August 1989 increased rating claim submitted by the Veteran, or in the accompanying medical reports, which can be liberally read as including a TDIU claim. Employability was not mentioned. Based on this record, the Board finds that the earliest TDIU claim was in June 2004. Since TDIU has been granted effective from September 23, 2002, more than a year prior to that claim, there is clearly no basis for assigning an earlier effective date under 38 C.F.R. § 3.400(o). Moreover, even if the August 1989 claim for an increased rating may somehow be interpreted as a TDIU claim under Roberson [which as indicated immediately above the Board finds is not the case], the earlier effective claim still fails. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide in the alternative]. The Federal Circuit addressed the issue of how to handle unadjudicated TDIU claims in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). The Federal Circuit held that when VA violates Roberson by failing to construe the Veteran's pleadings to raise a claim, such claim is not considered to have been unadjudicated but rather that the claim had been finally decided. See also Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006) ["Where a veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run."] As noted by the Federal Circuit in Andrews, such RO error in failure to adjudicate a claim is properly corrected through a CUE motion (assuming that a NOD is not timely filed). The Federal Circuit issued another decision on the same day as Andrews. In Johnston v. Nicholson, 421 F.3d 1285 (Fed. Cir.) the Federal Circuit rejected the government's argument that an alleged and unadjudicated TDIU claim remained pending before the RO. The Federal Circuit noted that it had rejected that argument in Andrews. The decisions of the Federal Circuit in Andrews and Deshotel are dispositive as to whether an unadjudicated claim for TDIU could be an avenue for assigning an earlier effective date. Even assuming for the sake of argument that a TDIU claim was raised in the Veteran's August 1989 claim for increased rating, the failure of the RO to act upon that claim implicitly denied it. As noted in Deshotel, the Veteran could have indicated disagreement with the implied denial of his TDIU claim or he could have raised a CUE challenge. He has done neither. Accordingly, there were no pending claims of entitlement to TDIU, express or implied, prior to 2004. The Veteran's attorney's June 15, 2004 letter is the initial communication which can be construed indicating an intent to apply for TDIU. June 15, 2002 is there the date of the TDIU claim. Factually ascertainable As was discussed above, applicable law provides that the effective date of an award of increased disability compensation (which as noted above includes TDIU, see Hurd) is the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year thereof. Otherwise, it is the date of receipt of the claim. See 38 C.F.R. § 3.400(o). In this case, the RO established an effective date for TDIU of September 23, 2002. This date is before the one-year look-back period in 38 C.F.R. § 3.400(o). Regardless of what the medical evidence of record may show as to prior unemployability o tots cause, an effective date cannot be established more than one year prior to the date of claim, or before June 15, 2003. For these reasons, an effective date for TDIU earlier than the currently assigned September 23, 2002 is not warranted. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the right lower extremity is denied. Entitlement to an effective date earlier than September 23, 2002 for the assignment of a separate 10 percent evaluation for radiculopathy of the left lower extremity is denied. Entitlement to an effective date earlier than September 23, 2002 for an award of a TDIU is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs