Citation Nr: 1122143 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-40 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than February 3, 2003 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Wade R. Bosley, Attorney ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active duty service from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which implemented the Board's decision granting TDIU. The Veteran appealed the RO's decision to assign an effective date of February 3, 2003, for the grant. The appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the appellant if further action is required on his part. REMAND TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Notwithstanding the provisions of 38 C.F.R. § 4.16(a), it is VA's policy to grant TDIU in all cases where service connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited; however, from assigning a TDIU under 38 C.F.R. § 4.16(b) in the first instance. Instead, it is required to remand the claim so that it can be referred to VA's Director of Compensation and Pension (C&P) for consideration of a rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). In addition, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The current effective date assigned for the Veteran's award of TDIU is February 3, 2003, the date his combined disability rating met the schedular requirements detailed in 38 C.F.R. § 4.16(a). Beginning from the time the Veteran filed a claim for pension benefits on June 16, 1997, he indicated that he had worked from January 1996 to December 1996 and from January 1997 to March 1997. He stated that PTSD symptomatology caused him to be fired from each job. The Board observes that the September 1996 statement from Dr. J.M.R. indicated that the Veteran was totally and permanently disabled due to chronic PTSD. In an undated statement from a social worker at Fort Wayne Vet Center, received between September 1998 and November 1998, it was indicated that the Veteran had been fired from numerous jobs and was only working at a menial job one day a week. The medical evidence, to include VA examinations in July 1997 and November 1999, demonstrate consistent post traumatic stress disorder (PTSD) symptomatology of anger, irritability, violence, occasional suicidal thoughts, reliving combat experiences, anxiety, isolation, guilt, nightmares, occasional auditory hallucinations, and poor impulse control. The medical evidence of record also indicates that the Veteran was intermittently homeless and struggled to hold down part-time employment, beginning June 16, 1997. Furthermore, the November 1999 VA examiner stated that the Veteran's professional abilities were impaired, and such may have been related to his thought impairment, poor impulse control, and anger affect. A December 2002 VA treatment record included a Global Assessment of Functioning (GAF) score of 35. Since filing his pension benefits claim in June 1997, he has continuously asserted that he was unemployable, primarily due to PTSD symptoms. Service connection has been granted for PTSD by way of an April 2001 rating decision, in which the RO assigned an evaluation of 0 percent effective February 13, 1989, 10 percent effective September 9, 1994, 100 percent for the period effective July 19, 1995, because of hospitalization over 21 days, 10 percent effective January 1, 1996, 30 percent effective August 6, 1997, and 50 percent effective November 3, 1999. In February 2003, the Veteran filed a formal claim, via VA Form 21-8940 for entitlement to TDIU asserting that his PTSD symptoms became so severe he was unable to work. In accompanying correspondence, his representative contended that the Veteran's TDIU claim had been an implied claim "all along." In a July 2004 rating decision, the RO determined that no revision was warranted in the evaluations assigned by the rating decision in April 2001 for PTSD, continued the currently assigned 50 percent rating, and denied entitlement to TDIU. In a December 2004 decision, the Board granted entitlement to a permanent and total disability rating for pension purposes from June 16, 1997 to April 30, 2001, based on the Veteran's PTSD. In June 2007, the Board determined that there was no clear and unmistakable error in the PTSD ratings assigned in the April 2001 rating decision, but granted an evaluation of 70 percent for PTSD. The Veteran and his representative continue to assert that the Veteran's June 16, 1997, VA Form 21-4238 encompassed a claim for TDIU considering the reports of unemployability due to PTSD. The representative stated that since the June 1997 claim for TDIU was not decided, it remained pending until there was an explicit adjudication of a subsequent "claim" for the same disability Ingram v. Nicholson, 21 Vet App 232, 243 (2007). The Board is required to remand this appeal so that it can be referred to the Director of C&P. for consideration of an earlier effective date for TDIU in accordance with 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should refer the appeal for an earlier effective date for the grant of TDIU to VA's Director of C&P for adjudication in accordance with 38 C.F.R. § 4.16(b). 2. If the appeal is not fully granted, the AOJ should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).