Citation Nr: 1034530 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 09-18 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date earlier than January 24, 2008, for the assignment of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from July 1944 to June 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted TDIU, effective from January 24, 2008. The Veteran disagrees with the assigned effective date. In May 2010, a hearing was held at the RO before the undersigned Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A formal claim for TDIU was received from the Veteran on January 24, 2008. 2. By rating action in April 2008, the RO granted TDIU, effective from the date of claim of January 24, 2008. 3. As of May 11, 2007, the Veteran had service-connected disabilities that could be combined to meet the schedular requirements for TDIU as a single disability with a rating of 60 percent. 4. It was factually ascertainable that entitlement to TDIU was warranted as of May 11, 2007. CONCLUSION OF LAW An effective date of May 11, 2007, but not earlier, for the assignment of TDIU is warranted. 38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1(p)(r), 3.155, 3.157, 3.400(o)(2), 20.1100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In regard to his claim for entitlement to a TDIU, the Veteran is challenging the initial evaluation assigned following the grant of a TDIU. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, VA's duty to notify in this case has been satisfied. Regarding the duty to assist, the RO has obtained the Veteran's VA treatment records and afforded him a VA examination in March 2008. The duty to assist has therefore been satisfied. Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Regardless, the Veteran stated on his May 2009 VA Form 9 that he "waives VCAA." The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 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); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). As to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. §§ 3.157(b)(1), 3.155(a) (2009). The Veteran did not appeal an April 10, 2007, Board decision which, in part, denied entitlement to TDIU. Thereafter, a formal claim for TDIU was received from the Veteran on January 24, 2008. See VA Form 21-8940, dated January 24, 2008. Thereafter, by rating action in April 2008, the RO granted TDIU, effective from the date of claim of January 24, 2008, based on March 2008 VA examination manifestations of PTSD, including a global assessment of functioning (GAF) scale score of 45, which was found by the examiner to indicate that the Veteran was completely and totally unemployable. However, the Board's review of VA treatment records reflects that the Veteran's symptoms were essentially consistent during the year prior to his claim as demonstrated by GAF scores of 49 assigned in June, October, and December 2007. In addition, as of May 11, 2007, the Veteran was assigned a 50 percent rating for his service-connected PTSD and a 10 percent rating for his service-connected tinnitus, which resulted from the same combat service as his PTSD. In the April 2004 rating decision that awarded service connection for PTSD and tinnitus, as to both claims the RO noted the Veteran's in-service training in grenade and rocket launching and overhead artillery fire. Thus, since the two disabilities occurred from the same etiology or action, these disabilities may be combined to meet the 60 percent schedular threshold for entitlement to TDIU based on a single disability. 38 C.F.R. § 4.16(a) (2009). Accordingly, since VA treatment records reflect that it was factually ascertainable that entitlement to TDIU was warranted as of the date schedular requirements were met for a TDIU on May 11, 2007, the Board finds that the criteria for entitlement to an earlier effective date of May 11, 2007, for the assignment of TDIU is warranted. Since the schedular threshold requirement for TDIU was not met until May 11, 2007, entitlement to an even earlier effective date is not warranted. ORDER Entitlement to an effective date of May 11, 2007, but not earlier, for the assignment of TDIU is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs