Citation Nr: 1001503 Decision Date: 01/11/10 Archive Date: 01/22/10 DOCKET NO. 07-06 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date prior to January 27, 2006 for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to a TDIU, effective from January 27, 2006. The Veteran appealed from the effective date for the award of that benefit. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to a TDIU on February 17, 2006. 2. There is medical evidence during the one-year period preceding February 17, 2006 establishing that the Veteran was unable to maintain substantially gainful employment due to the effect of service-connected disabilities. CONCLUSION OF LAW The criteria are met for an earlier effective date of February 17, 2005 for the award of a TDIU. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2009), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2009). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In regard to the claim on appeal for an earlier effective date for a TDIU, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). A February 2006 letter on a then pending claim for entitlement to a TDIU set forth the requirements to obtain that benefit. A March 2006 supplemental letter pursuant to the Dingess/Hartman decision explained the criteria to establish entitlement to an earlier effective date. The January 2007 Statement of the Case (SOC) also cited to the general criteria regarding the assignment of effective dates. The February 2006 VCAA notice had further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The relevant VCAA notice preceded issuance of the rating decision on appeal, and thus comported with the standard for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA outpatient treatment. In support of his claim, the Veteran has provided additional outpatient records, letters from treatment providers, and numerous personal statements. He previously requested a Travel Board hearing, but withdrew this request in advance of the scheduled hearing date. There is no indication of any further available evidence or information that has not already been obtained. The record as it stands includes sufficient competent evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. The general rule with regard to an award of increased disability compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one- year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation therefore apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a); Criswell v. Nicholson, 20 Vet. App. 501 (2006); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). In addition, under 38 C.F.R. § 3.157(b) once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: the report of examination or hospitalization at a VA or uniformed services medical facility, evidence from a private physician or layperson that shows the reasonable probability of entitlement to benefits, or examination reports or clinical records from State medical facilities or other institutions. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service- connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16. If the claimant does not meet the minimum percentage rating requirements of section 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra-schedular basis. 38 C.F.R. §§ 3.321(b)(1), 4.16(b). While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996). See also Floyd v. Brown, 9 Vet. App. 88, 95 (1995). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. 4.1, 4.15. Other factors that receive consideration in determining whether a veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b). See also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The current assigned effective date for the award of a TDIU is that of January 27, 2006. The RO provided for this effective date through a two-step process, the first of which recognized that the date the Veteran filed his claim for a TDIU was February 17, 2006. The second procedural step took into account that there was a January 27, 2006 letter on file from VA treatment providers, describing service-connected disability with a severe impairment upon employability. The RO's assignment of a January 27, 2006 effective date based on this correspondence recognized a factually ascertainable increase in disability warranting a TDIU during the one-year preceding the relevant date of claim. See 38 C.F.R. § 3.400(o)(2). Reviewing the January 2006 VA therapists' statement in more detail, the treatment providers indicated having provided individual outpatient psychotherapy to the Veteran for combat-related posttraumatic stress disorder (PTSD) and major depression. The statement described the Veteran as having significant and persistent PTSD symptoms, which made it very difficult if not impossible for him to function in daily activities, work and family. Considering this statement, the Board observes that it clearly supports assignment of the existing effective date that is retroactive to the January 27, 2006 date of this correspondence. The Board's analysis turns to whether any earlier effective date than January 27, 2006 may be warranted. In this capacity, the record establishes that February 17, 2006 is the correct date of claim for a TDIU, for purpose of assignment of the proper effective date of entitlement to that benefit. There is no earlier pending unadjudicated claim for a TDIU of record. While the Veteran had previously filed a formal application for a TDIU (VA Form 21-8940) on June 7, 2004, the RO adjudicated and issued a now final December 2004 rating decision denying that original TDIU claim. Notification was provided to the Veteran on January 12, 2005. The Veteran filed a timely Notice of Disagreement (NOD) with the December 2004 rating decision, but did not respond to the RO's issuance of an October 2005 Statement of the Case (SOC) by filing a timely VA Form 9 (e.g., a Substantive Appeal to the Board). In this case, a timely VA Form 9 would have had to have been filed within one-year of the RO's notification of the December 2004 rating decision, i.e., on January 12, 2006. See 38 C.F.R. § 20.302(b) (a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later). Hence, the Veteran did not perfect an appeal of the December 2004 rating decision, and that decision therefore became final and binding on its merits. See U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 20.200, 20.202 (2009). For purposes of assignment of an effective date, the finality of a prior decision on entitlement to the established benefit may not be contravened, absent a plausible showing of clear and unmistakable error (CUE), which has not been alleged in this case. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Consequently, the more recent February 17, 2006 filing of a new TDIU claim must be accepted as the relevant date of claim. As indicated, the applicable regulation permits the assignment of an effective date up to one-year prior to the date of claim where there has been a factually ascertainable increase in disability. See 38 C.F.R. § 3.400(o)(2). Thus, the proper effective date in this case is not limited to the date of claim, and may be up to one-year earlier. To this effect, the Veteran has submitted a March 2007 letter from a VA mental health counselor indicating that the Veteran's diagnosis was PTSD, chronic and severe. The VA treatment provider further stated the opinion that the onset of the Veteran's total and permanent disability due to PTSD was August 18, 2003 when he had his initial VA mental health intake evaluation and was diagnosed with PTSD. There are also records of VA outpatient treatment on file dated from January 2004 up until May 2006 confirming that this individual had a continuing role in treatment of the Veteran, and would have had direct knowledge of the circumstances of his case. In view of these findings, the Board will assign an earlier effective date of February 17, 2005 for a TDIU, the entire one-year preceding the date of receipt of the Veteran's claim, as the medical evidence establishes the requisite level of disability during this time period. The basis for this award having been set forth, there is no provision for any further retroactive award of benefits beyond the delimitation of one-year set forth under 38 C.F.R. § 3.400(o)(2). In furtherance of this appeal the Veteran and his representative have set forth various arguments in support of what would be a still earlier effective date, which the Board has considered on their respective merits. The Veteran raises the contention that the effective date for a TDIU should parallel that of a January 2006 Social Security Administration (SSA) decision which found him disabled for purpose of receipt of disability benefits from that agency, effective from January 16, 2003. However, this argument does not address the fact that under VA law, an effective date is assigned in accordance with the date of claim, as well as when entitlement was established. Here, there is no earlier date of claim than February 17, 2006. An award of benefits can be no earlier than a one-year therefrom. Even were the date of claim not an issue, a decision of the SSA is nonbinding upon VA. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-71 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In any event, the fact that the Veteran filed his claim on February 17, 2006 is the determinative factor in limiting the available window of benefits entitlement to within one-year preceding the date of filing. In addition, the Veteran's representative raises the contention that an earlier date of claim than February 17, 2006 should manifest, by reason of an apparent lack of finality of the RO's December 2004 rating decision on the Veteran's original TDIU claim. Namely, the representative points out that the October 2005 Statement of the Case on that issue (for which no Substantive Appeal was ever filed) was properly sent to the Veteran, but sent to the incorrect representative. The Veteran's correct designated representative at the time was a private attorney, and the October 2005 SOC was mistakenly sent to the appellate division of the Disabled American Veterans (DAV). According to the Veteran's current representative, this mistake vitiated the finality of the December 2004 rating decision that previously denied a TDIU, and as such the June 4, 2007 original date of claim for a TDIU should apply. The Board in considering this argument notes that although VA law requires mailing of an SOC to the Veteran and the correct representative, there is simply no precedent in law or regulation that failure to send an SOC to the proper representative by itself warrants removal of finality of the decision in question. The Court has held that the proper remedy is to vitiate the finality of a decision where the party who did not receive the SOC was the Veteran himself. See e.g., Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Here, however, there is no dispute that the Veteran properly received the October 2005 SOC, and moreover did not take action to ensure that a timely Substantive Appeal was received in response to the SOC in order to perfect an appeal. The apparent mistake involving the correct representative in this case cannot be said to be a determinative factor in resolving the question of the relevant date of claim for a TDIU, and thus the appropriate effective date for initial entitlement to that benefit. Accordingly, under the circumstances of this case, the Board is granting an earlier effective date of February 17, 2005 for the award of a TDIU, as the earliest assignable effective date under applicable law. ORDER An earlier effective date of February 17, 2005 for the award of a TDIU is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs