Citation Nr: 1017657 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 04-14 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an effective date prior to June 18, 1998, for service connection for disabilities of the right and left ankles. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to November 1977. This appeal came to the Board of Veterans' Appeals (Board) on appeal from March and November 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied the benefits sought. In May 2006, the Board remanded the claim for development. In September 2008, the Board denied the claims on appeal. In January 2010, however, the United States Court of Appeals for Veterans Claims (Court) remanded the case for re-adjudication consistent with a Joint Motion for Remand. The Veteran appointed private counsel to represent him before the Court; however, there is no indication that private counsel has been appointed to continue representing the Veteran in the matter currently before VA. Thus, the Veteran is unrepresented in this matter. FINDINGS OF FACT 1. In April 1989, the RO denied the service connection for disabilities of both ankles; the Veteran appealed that action; the Board then denied service connection for the ankles in a June 12, 1991, decision. 2. The RO received an application to reopen a claim for entitlement to service connection for the ankles on July 20, 1994. 3. Service connection for the ankles was ultimately granted. 4. The earliest VA treatment report dated within one-year of the July 20, 1994, application to reopen the claim is a May 25, 1994, VA X-ray report that relates to a service-connected disability. 5. Service-connected is in effect for right and left ankle degenerative arthritis and for pronounced, bilateral, acquired pes planus; the combined rating is 70 percent, with bilateral pes planus being rated 50 percent disabling. 6. The evidence indicates that the Veteran has four years of high school along with some college courses. He has work experience as a laborer. 7. It is at least as likely as not (50 percent or greater probability) that service-connected disabilities preclude the Veteran from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The Board's June 12, 1991, decision that denied entitlement to service connection for disabilities of the ankles is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 3.160, 20.200, 20.201, 20.202, 20.300, 20.301(a), 20.302, 20.1103 (2009). 2. The criteria for an effective date of May 25, 1994, for service connection for disabilities of the right and left ankle are met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.156, 3.400 (2009). 3. The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107(a) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. In this case, the Board is granting in full the benefits sought by the claimant. Any error committed with respect to either the duty to notify or the duty to assist does not result in unfair prejudice to the claimant and need not be discussed. Earlier Effective Date The Veteran requests that an effective date earlier than June 18, 1998, be assigned for service connection for a bilateral ankle disability. The Veteran filed an original service connection claim in November 1981; however, the claim was for service connection for pes planus and arthritis of the feet and no mention was made of intent to seek service connection for the ankles. After a denial decision in March 1982, the Veteran appealed. In his VA Form 9, Substantive Appeal, received on June 9, 1982, he argued for service connection for bilateral ankle arthritis, as well as for error in the March 1982 decision. This June 9, 1982-received submission is the first indication received by VA that the Veteran sought service connection for his ankles. In June 1984, the Board denied service connection for bilateral flat feet and for bilateral arthritic feet, but did not address the ankles. Thus, the claim for service connection for the ankles remained pending in spite of the Board decision. In a February 1986-issued RO rating decision, the RO reopened a claim for service connection for arthritis of the feet and for flat feet and then denied those claims, but did not address the ankles. The Board later granted service connection for flat feet and arthritis of the feet, but made no mention of service connection for arthritis of the ankles (see administrative amendment portion of a March 1988 Board reconsideration decision, claims files, Vol 1). In December 1988, the Veteran submitted a formal application for service connection for a bilateral ankle condition. According to an April 1989 VA consultation examination, the ankles were asymptomatic. X-rays were unremarkable. The relevant impression was "No ankle condition found this exam." (See claims files, Vol 1). The RO issued a rating decision in April 1989 that denied service connection for arthritis of the ankles. In May 1989, the Veteran submitted a notice of disagreement (NOD) and the RO issued a statement of the case (SOC). The SOC failed to consider a December 1981 private medical report that states that osteoarthritis of both ankles was found. The SOC also failed to consider an August 1983 VA examination report that mentions that both ankles exhibited crepitation. The Veteran appealed; however, in June 1991, the Board denied service connection for a bilateral ankle disorder. The Veteran did not appeal the June 1991 Board decision and it became final. A January 1993 VA general medical compensation examination report notes left ankle crepitus with tendonitis, limitation of flexion, and tenderness on manipulation of the left ankle. The relevant diagnosis was bilateral ankle arthralgia. On July 20, 1994, the RO received a request for service connection for the ankles. A December 1994 VA orthopedic compensation examination report notes that X-rays showed early degenerative changes and arthritis in the right ankle and left ankle tenderness and crepitus on manipulation. Although the physician offered an assessment of ankle pain with history of pes planus (implying a possible relationship), the physician then dissociated the ankle disorders from the service-connected pes planus and mid and forefoot arthritis. In January 1995, the RO denied service connection and secondary service connection for the ankles. The Veteran submitted an NOD in March 1995 and the RO issued an SOC in March 1995. The decision does not mention a prior final Board decision on the issue. On January 17, 1996, the RO timely received a hearing request in lieu of a VA Form 9, Substantive Appeal (see Vol 2). The RO held the hearing on the ankles that same day. At the hearing, the Veteran timely indicated his desire to appeal and set forth his contentions. In March 1996, the RO issued a rating decision that determined that no new and material evidence had been submitted. It does not mention that a January 1995 rating decision had been appealed, nor does it mention the final June 1991 Board decision. A September 1996 VA orthopedic compensation examination report reflects a diagnosis of bilateral mild ankle arthritis. A December 1996 addendum report confirms arthritis of both ankles that, as explained, had not appeared on X-rays, but was nevertheless present. The physician concluded that bilateral ankle arthritis was "probably due" to flat feet, and offered a rationale for that conclusion. In November 1997, the Veteran submitted a portion of an August 1995 examination report by the Nebraska Disability Determination Services, signed by a doctor, that contains as assessment of arthritic changes with crepitus and decreased range of motion in the ankles, bilaterally. In March 2000, the RO determined that new and material evidence had not been submitted. The Veteran immediately submitted an NOD and the RO issued an SOC in August 2000. The Veteran submitted a timely VA Form 9, Substantive Appeal. In February 2001, the RO wrote the Veteran and informed him in a letter that his ankle-related claim had been reopened. In December 2001, the RO issued a rating decision informing the Veteran that new and material evidence had not been submitted and that the claim was not reopened. Confusion over whether the claim was reopened was eliminated in April 2003 when the Board found new and material evidence and reopened the claim. The Board also found, however, that a March 1996 RO rating decision had become final because it was not appealed. In a September 2003 decision, the Board granted service connection for bilateral ankle arthritis. In October 2003, the RO assigned June 18, 1998, as the effective date for service connection for the ankles. In May 2004, the Veteran submitted an NOD to the effective date. In September 2004, he argued that the March 1996 rating decision had not become final due to a timely appeal of a January 25, 1995-issued rating decision. He then requested a 1994 effective date for service connection for the ankles. In November 2004, the RO issued a decision denying an earlier effective date. In a September 11, 2008-issued decision, the Board denied an effective date earlier than June 18, 1998, for service connection for the ankles. In a January 20, 2010-issued order, the Court vacated that decision for compliance with instructions set forth in a joint motion. The joint motion asserts that under 38 C.F.R. § 3.156 (b), a December 1996 favorable compensation examination report would form the basis of an earlier effective date for service connection. While this assertion would have merit if the March 1996 rating decision had become final, there is a basis for an even earlier effective date. In September 2004, the Veteran correctly argued that the March 1996 rating decision had not become final. It had not become final because the Veteran had already timely appealed a January 1995 rating decision on the issue. As noted above, the NOD to the January 1995 rating decision was timely, an SOC was issued, and correspondence containing the necessary information was timely received. Although he did not return a signed VA Form 9, Substantive Appeal, he did convey his request in a writing for a hearing on the matter. According to 38 C.F.R. § 20.202, any timely correspondence containing the necessary information fulfills the requirement for a substantive appeal. The vacated September 2008 Board decision erroneous found that the RO had originally denied service connection for the ankles on March 19, 1996. As mentioned above, in stark contrast to this finding, the RO had first denied the claim in April 1989 and in June 1991, the Board upheld the decision. Thus, the April 1989 RO decision was subsumed by a final June 1991 Board decision on the matter. When the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the Board's decision. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1103, 20.1104. The June 1991 Board decision then becomes the last final decision on the matter prior to the current claim. The Board's April 2003 decision, at page 15, erroneously found that a March 1996 RO rating decision had become final because it was not appealed; however, it must be noted that the Board decision was basically favorable, as it had found new and material evidence to reopen the claim. After finding new and material evidence for service connection, the Board neither adjudicated nor remanded the issue. Rather, it simply announced in the introduction that service connection for the ankles would be further addressed in a later decision. While the April 2003 Board decision is tainted by an erroneous finding of finality of a March 1996 RO rating decision, the Veteran had no clear recourse until later when VA issued a decision that assigned an effective date for service connection. Regardless of the Board's erroneous notation that a March 1996 RO rating decision was the last final decision on the matter, it is clear that the June 1991 Board decision became the last final decision on the matter prior to the claim that was received at the RO on July 20, 1994. We must now review the statute and regulations governing the assignment of effective dates. The effective date of service connection will be the later of the date of receipt of claim or the date entitlement arose if the claim is received more than one year after the Veteran's discharge from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r) (2009). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2009). Because a similar service connection claim was denied in June 1991, the Board cannot consider earlier-dated service connection claims or evidence received prior to June 1991. No revision to the June 1991 final Board decision may be made absent CUE or a finding of non-finality. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997) 38 C.F.R. § 3.105. The Veteran has not asserted that the June 1991 Board decision is based on CUE or that it lacks finality. The next question is whether at any time after June 12, 1991, and prior to June 18, 1998, the Veteran submitted a claim for service connection for the ankles. The claims files reflect that the earliest date that the Veteran submitted such a claim was July 20, 1994. This date becomes the correct effective date for the grant of benefits; however, under certain circumstances, an earlier-dated treatment report may suffice as a claim for service connection. Under 38 C.F.R. § 3.157, a treatment report dated prior to the actual claim may suffice as a claim in certain circumstances. The provision applies only where a formal claim for compensation has been allowed, or disallowed for the reason that the disability is not compensable in degree. 38 C.F.R. § 3.157 (b). In this case, a formal claim for compensation had been allowed. See April 1988 rating decision. Thus, the provisions set forth at § 3.157 are available. Under 38 C.F.R. § 3.157 (b), a claim specifying the benefit sought must actually be received within one year from the date of the examination, treatment, or hospital admission. Under 38 C.F.R. § 3.157 (b) (1), such report, if used as the date of claim, must relate to a service-connected disability or where a claim for service connection for such disability is received within one year from the date of the report in question. Because a claim for service connection for the ankles was actually received on July 20, 1994, the next inquiry, therefore, is whether there is an examination, hospital, or other treatment report dated within one-year of July 20, 1994, that meets the above requirements. A January 1993 VA general medical examination report offers an ankle- related diagnosis, but because it is dated prior to July 20, 1993, it cannot be used. On May 25, 1994, VA X-rayed the right foot. (Claims files, Vol 4). The X-ray report notes a flattened right arch. Because service connection for pes planus has been in effect since January 1986, this May 25, 1994, this VA X-ray report of the right arch and foot clearly relates to a service- connected disability. The report meets the requirements of § 3.157 (b) and subsection (b) (1). It may therefore be used as the date of the claim. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors an earlier effective date of May 25, 1994, for service connection for bilateral ankle arthritis. TDIU TDIU may be assigned where the schedular rating for service- connected disabilities is less than 100 percent when it is found that service-connected disabilities render the individual unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2009). Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19 (2009). Factors to be considered are the Veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91. The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a), provide for TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the Veteran is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2009). TDIU presupposes that the rating for the service-connected condition is less than 100%, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's service-connected disabilities, the Board cannot overlook the level of education he completed, his professional training, and his employment history. 38 C.F.R. §§ 3.341, 4.16, 4.19. Employment is that "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). "Unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Service connection is in effect for pronounced, bilateral, acquired pes planus (50 percent) and for arthritis of the left ankle (10 percent), and arthritis of the right ankle (10 percent). Because these disabilities, in combination with the bilateral factors, combine to an overall 70 percent rating, the threshold for schedular consideration of TDIU is met. In January 1988 and at various times thereafter, the Veteran requested TDIU. In April 1998, the Board denied TDIU. (Claims files, Vol 3). In April 2000, The Court vacated the Board decision. Id. In April 2003, the Board again denied TDIU. (Claims files, Vol 5). In November 2003, a VA examiner found the Veteran to be employable and in April 2004, SSA found the Veteran to be employable. A June 2004 VA general medical examiner, however, reported that service-connected disabilities would very likely preclude employment. In July 2004, another VA examiner would not conclude that the Veteran could work, but was not able to find him unemployable either, because he had not yet tried all possible therapies for his ankles and feet. In May 2006, yet another VA examiner found the Veteran employable with limitations, essentially limiting employment potential to sedentary work. The RO continued to deny TDIU and in September 2008, the Board denied TDIU. The Court vacated the Board decision and directed further development consistent with the joint motion. In the joint motion, the parties agreed that the Board had failed to discuss favorable medical evidence. The first of these favorable reports is a June 2004 VA compensation examination report and addendum that clearly indicate that the service-connected disabilities rendered the Veteran unemployable. Moreover, while one SSA decision does deny disability benefits, a later-dated, May 1996 SSA decision did grant unemployability because of the feet and ankles, exclusively. The SSA found that as a result of "severe" joint disease of the feet and ankles, he was unable to return to his work as a laborer and he lacked the "residual functional capacity for any type of substantial and gainful work activity on a full-time basis." The SSA subsequently issued a decision in March 2004. This decision is contrary to the action issued in 1996. The SSA found the Veteran's assertions of unemployability as not being credible. Moreover, SSA concluded that the Veteran could perform sedentary work such as a production assembler or hand packager. A VA medical examiner, in April 2008, wrote: . . . this patient could most definitely seek gainful employment with a few specific limitations. . . . this veteran could have a job in which he sat for a majority of the day, as this is what patient does and with no specific complaints of his unemployable lifestyle. It is further the opinion of this examiner that this patient may be somewhat reluctant to seek any form of employment for other than specifically medically related reasons. The June 2004 VA examiner is convinced that service-connected disabilities render the Veteran unemployable. This opinion is persuasive, as it is based on accurate facts and is supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Other medical opinions do find employability; however, they do so with conditions, restrictions, or reservations. The November 2003 VA examiner felt that the Veteran was malingering, which is the main reason for finding him employable. No other examiner expressed any doubt as to the Veteran's foot pains, however, or felt that the Veteran was malingering. Thus, the benefit of the doubt on malingering goes to the Veteran. The May 2008 VA examiner found the Veteran able to seek employment, but then limited his work potential to a sitting job. This is unrealistic, given the Veteran's education level and work experience. Because there is credible evidence for and against the Veteran's assertion of unemployability, the Board cannot find that the evidence preponderates for or against the claim. After reviewing the evidence and testimony, including all of the records provided by the SSA, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. TDIU will therefore be granted. ORDER Entitlement to an earlier effective date of May 25, 1994, for service connection for disabilities of the right and left ankles, is granted. Entitlement to TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs