Citation Nr: 1124153	
Decision Date: 06/24/11    Archive Date: 06/29/11

DOCKET NO.  10-24 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an effective date prior to September 4, 2009, for the award 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

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from February 1980 to July 1980, from October 1989 to December 1989, and from June 1990 to December 1991, with additional periods of active duty for training and inactive duty training.

This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut.

The February 2008 rating decision denied entitlement to a TDIU.  The Veteran's TDIU claim was granted in the November 2009 rating decision, and an effective date of September 4, 2009, was assigned.  The Veteran has appealed the assigned effective date.

A June 2010 letter from the Veteran reflects that she wished to withdraw her claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and entitlement to special monthly compensation based on aid and attendance or housebound status.  Regulations provide that an appeal may be withdrawn in writing by an appellant or by his or her authorized representative at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204 (2010).  Thus, these claims have been properly withdrawn and are no longer before the Board.

In December 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.


FINDING OF FACT

The RO received the Veteran's claim of entitlement to a TDIU on June 15, 2007, and it was continuously prosecuted thereafter.


CONCLUSION OF LAW

The criteria for an effective date of June 15, 2007, but no earlier, for entitlement to a TDIU are met.  38 U.S.C.A. §§  5110, 7105 (West 2002); 38 C.F.R. § § 3.400, 20.201 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2010)).

The Board notes that this appeal arose from a disagreement as to the effective date assigned for an award of a TDIU.  Under such circumstances, where a disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any deficiency in VCAA notice in this case or any resulting prejudice; thus that burden has not been met in this case.

As to the duty to assist, VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical examinations as to the severity of disabilities.  As will be discussed in greater detail below, these examinations provided sufficient information so as to allow the Board to evaluate her claim for an earlier effective date for a TDIU .  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.

II.  Earlier Effective Date

The Veteran requests an effective date of June 15, 2007, for the grant of her claim of entitlement to a TDIU.  She essentially contends that this is the date on which she filed her TDIU claim.

The record reflects that the Veteran did, in fact, file a claim of entitlement to a TDIU that was received by VA on June 15, 2007.  This claim was denied by the RO in a February 2008 rating decision, and a notice of this denial was sent to the Veteran that same month.  

In September 2009, the Veteran again requested entitlement to a TDIU.  This claim was granted in the November 2009 rating decision, and an effective date of September 4, 2009, was assigned.  

In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2010).

The effective date in the case at hand was assigned based on the Veteran's having submitted a TDIU request that was received by VA on September 4, 2009.  The appellant contends, however, that the correct date of claim is June 15, 2007, and has requested a corresponding effective date.

VA Form 4107, 'Your Rights to Appeal Our Decision,' notifies a veteran who disagrees with the RO's decision that he or she may either (1) appeal to the Board by telling the RO that he or she disagrees with its decision, or (2) give the RO evidence that is not already on file that may lead to a change in the decision.  This form notifies the veteran that, in order to begin an appeal, he or she must write VA a letter stating that he or she disagrees with its decision.  VA Form 4107 further states that VA will then either grant the veteran's claim or issue a statement of the case.  A veteran is told that the statement of the case will be accompanied by a VA Form 9, 'Appeal to the Board of Veterans' Appeals.'  Under the heading 'Can I Give VA Additional Evidence?' a veteran is notified that he or she can send in more evidence to support a claim whether or not he or she appeals to the Board.

In the case at hand, the Board finds that the appellant submitted statements and evidence within one year of the February 2008 denial of her TDIU claim that reflects her disagreement with the February 2008 denial and an intention to continue to pursue a TDIU.  

An October 2008 VA medical record notes that the Veteran had "80% [service connection] although wanted 100% including unemployability; is currently in process of appealing claim."  

In February 2008, just prior to the promulgation of the February 2008 rating decision, VA received a letter from Senator Christopher Dodd inquiring into the status of the Veteran claim of "eligibility for compensation due to her 'unemployability' from a number of service-connected conditions."  In November 2008, VA received another letter from Senator Dodd inquiring into the status of the Veteran's "service-connected disability conditions."  The Veteran testified at her December 2010 Board hearing that she had been in contact with Senator Dodd in relation to her unemployability claim and that he had contacted VA in regard to this claim multiple times.  The record does not reflect, and the Veteran does not contend, that she either intended to or actually did initiate the appeals process for any other claim that has not been properly acknowledged by VA through the timely issuance of a statement of the case.  Rather, statements made by the Veteran in the course of this appeal, including at her Board hearing, assert a belief that she had specifically appealed the February 2008 TDIU denial.

The Board notes that the record reflects the Veteran revoked power of attorney from the Connecticut Department of Veterans Affairs in December 2007, two months prior to the February 2008 rating decision.  The Veteran was unrepresented until November 2009, when she filled out a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, appointing Disabled American Veterans (DAV) as her current accredited representative.  Thus, the Board notes, the Veteran was unrepresented at the time of the February 2008 rating decision and during the entire one-year appeals period thereafter.  

Resolving reasonable doubt in favor of the Veteran, the Board finds that the record contains sufficient notice that the Veteran disagreed with the February 2008 denial of her TDIU claim and had expressed to VA her intention to appeal this denial.  The Board notes that the October 2008 VA medical record reflects the Veteran's belief that the appeals process had already begun and that the November 2008 status inquiry from Senator Dodd would thus have reasonably encompassed the TDIU claim.  This interpretation is especially valid in the case at hand, where the Veteran did not have a representative at the time of the February 2008 rating decision and during the one-year appeals period thereafter.  See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (finding that VA is obligated to sympathetically read the filings of a pro se Veteran). 

In short, the Board finds that the evidence reflects the Veteran had initiated the appeals process with respect to the February 2008 rating decision.  As reflected elsewhere in the record, including in her September 2009 filing, the Veteran has been unable to work since November 2006.  The Veteran's unemployability is thus determined to have arisen in November 2006.  Because the date of the earliest document of record that can be reasonably construed as raising a claim for a TDIU, June 15, 2007, is later than the date of unemployability, the Board must assign an effective date of June 15, 2007.  Thus, the Veteran's claim of entitlement to an earlier effective date for TDIU is granted.


ORDER

Entitlement to an effective date of June 15, 2007, but no earlier, for the award of a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs