Citation Nr: 1300684 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-27 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date prior to August 20, 2008, for the grant of a total disability rating for compensation on the basis of individual unemployability (TDIU). ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. When this matter was initially before the Board in December 2011, the Board denied entitlement to an earlier effective date for entitlement to a TDIU. The veteran appealed the Board's December 2011 decision to the United States Court of Appeals for Veterans Claims (Court), which in a September 2012 order, granted the parties' joint motion for remand, vacating the Board's December 2011 decision and remanding the case for compliance with the terms of the joint motion. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. An unappealed August 1998 rating decision continued a 20 percent rating for prostate cancer residuals and a noncompensable rating for erectile dysfunction. 2. No new and material evidence was received within one year of that August 1998 rating decision. 3. The Veteran has not asserted that the August 1998 rating decision continuing a 20 percent rating for prostate cancer residuals and a noncompensable rating for erectile dysfunction contained clear and unmistakable error (CUE). 4. An unappealed August 2001 rating decision assigned earlier effective dates for the grant of service connection for prostate cancer residuals, erectile dysfunction, and loss of use of a creative organ. 5. No new and material evidence was received within one year of that August 2001 rating decision. 6. The Veteran has not asserted that the August 2001 rating decision assigning earlier effective dates for the grant of service connection for prostate cancer residuals, erectile dysfunction, and loss of use of a creative organ contained CUE. 7. An unappealed February 2002 rating decision continued a 20 percent rating for prostate cancer residuals. 8. No new and material evidence was received within one year of that February 2002 rating decision. 9. The Veteran has not asserted that the February 2002 rating decision continuing the 20 percent rating for prostate cancer residuals contained CUE. 10. An unappealed January 2005 rating decision granted service connection and a 30 percent rating for a major depressive disorder, effective September 3, 2004. 11. No new and material evidence was received within one year of that January 2005 rating decision. 12. The Veteran has not asserted that the January 2005 rating decision assigning 30 percent rating for a major depressive disorder contained CUE. 13. An unappealed October 2007 rating decision increased the rating for the Veteran's service-connected prostate cancer residuals to 40 percent, effective January 19, 2007. 14. No new and material evidence was received within one year of that October 2007 rating decision. 15. The Veteran has not asserted that the October 2007 rating decision that assigned a 40 percent rating for residuals of adenocarcinoma of the prostate, effective January 19, 2007, contained CUE. 16. On August 20, 2008, the RO received a claim for a TDIU rating. 17. A February 2009 rating decision granted a TDIU rating, effective August 20, 2008. 18. The evidence of record shows that the Veteran has been totally and permanently disabled since at least September 2000. 19. The evidence dated during the one-year period prior to August 20, 2008, does not establish that the Veteran's service-connected disabilities increased in severity so as to preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date prior to August 20, 2008 for the award of TDIU have not been met. 38 U.S.C.A. § 5110 (2002); 38 C.F.R. §§ 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, i.e., entitlement to a TDIU rating, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, no discussion of VA's duty to notify is necessary. As to VA's duty to assist, all pertinent evidence has been associated with the claims folder, and that Veteran does not contend otherwise. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a) , § 5103A, or 38 C.F.R. § 3.159, and that he will not be prejudiced by the Board's adjudication of his claims based on the current record. The provisions governing the assignment of effective dates for 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 for effective dates for increased rating claims 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). However, 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, 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, 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). To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe as to preclude the claimant from securing and maintaining a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2,317 (1992). 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 rating. Subjective criteria, set forth at 38 C.F.R. § 4.16(a), warrant TDIU when, due to one or more service-connected disabilities, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 individual is unable to obtain or retain substantially gainful employment as a result of service-connected disability. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual claimant's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (finding that level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Pursuant to 38 C.F.R. § 3.340(a) (2012), "total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." A determination whether a person is capable of engaging in a substantially gainful occupation must consider both the person's abilities and his employment history. Faust v. West, 13 Vet. App. 342, 355 (2000). The Veteran essentially contends that the award of the TDIU rating should be made effective in August 2000, the month in which the Social Security Administration determined he became totally and permanently disabled. The Veteran's case was remanded by the Court in its July 2012 Joint Motion so that the provisions of 38 C.F.R. § 3.156(b) could be addressed. To the extent that finality of the rating decisions prior to the February 2009 rating decisions were not considered by the RO, the Board recognizes that 38 C.F.R. § 19.9(b) (2) provides that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Board notes that while the validity of this regulation has been challenged, the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the regulation in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348-9 (Fed. Cir. 2003). The record reflects that, prior to the February 2009 rating decision granting TDIU, an August 1998 rating decision continued a 20 percent rating for prostate cancer residuals and a noncompensable rating for erectile dysfunction; an August 2001 rating decision assigned an earlier effective dates for the grant of service connection for prostate cancer residuals, erectile dysfunction, and loss of use of a creative organ; a February 2002 rating decision continued the 20 percent rating for prostate cancer residuals; a January 2005 rating decision granted service connection for and assigned a 30 percent rating for a major depressive disorder; and an October 2007 rating decision assigned a 40 percent rating for his prostate cancer residuals. Further, the Veteran has not specifically raised the issue of CUE in the August 1998, August 2001, February 2002, January 2005 and October 2007 rating decisions, or in any other prior unappealed rating decisions. Additionally, review of the record also does not show that, within one year of each of these determinations, the Veteran expressed disagreement with the determinations in question, or that any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the August 1998, August 2001, February 2002, January 2005 and October 2007 rating decisions are final. In reaching this conclusion with respect to the finality of the Veteran's prostate cancer claim that was adjudicated in October 2007, the Board, as a finder of fact, specifically determines that the Veteran's August 2008 filing of a formal VA Form 21-8940, "Veteran's Application For Increased Compensation Based On Unemployability," does not constitute new and material evidence under 38 C.F.R. § 3.156(b) because it is not material to the Veteran's prostate cancer claim that was adjudicated in October 2007 because it does not even reference his prostate cancer in asserting entitlement to TDIU benefits. See Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005) (applying definition from 38 C.F.R. § 3.156(a) to § 3.156(b) for terms "new" and "material" and concluding that a statement alone (here the TDIU application), without any supporting evidence submitted within the one-year period did not require VA to readjudicate his claim). In an October 2000 statement which also asserted entitlement to a higher rating for his prostate cancer residuals, the Veteran stated that the "attached physician and employer's certificate indicates that the effects of [herbicides] is now affecting my mental conditions unabling (sic) me to properly perform rutinary actions." As he made a claim for a higher rating and submitted evidence of interference with employment, this should be considered an informal claim for TDIU under the provisions of Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). However, Rice makes clear that a claim for such benefits is part-and-parcel of an increased rating claim. To that end, the award of a disability rating less than 100 percent generally provides notice as to how the Secretary has rated a claimant's condition and serves as a final decision, if unappealed, with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU. Locklear v. Shinseki, 24 Vet. App. 311, 316 (2011). Thus, to the extent that an informal claim for TDIU was raised in conjunction in the October 2000 statement concerning the Veteran's claim for an increased rating for prostate cancer residuals, the Board finds that any such informal claim for TDIU was inherently denied in the August 2001 rating decision, and because the Veteran did not perfect an appeal as to that denial, that there remains no pending claim for TDIU. The Veteran first submitted a formal claim for entitlement to a TDIU rating on August 20, 2008. A February 2009 RO rating decision granted a TDIU rating, effective August 20, 2008, and increased the rating for the Veteran's service-connected major depressive disorder to 50 percent, effective August 20, 2008. The evidence of record, to include private and VA treatment records, VA examination reports, and records from the Social Security Administration (SSA) indicate that the Veteran was totally and permanently disabled due to service-connected disabilities, or later granted service connected disabilities in the case of his service-connected major depressive disorder, since at least September 2000. Specifically, Dr. Galindez's September 2000 attending physician statement related a diagnosis of major depression, and found that the Veteran was totally disabled from his job, as well as any other work. A March 2002 treatment report from Dr. Galindez indicated a diagnosis of a major depressive disorder and included comments that the Veteran was unable to sustain any work performance. Records from the SSA reflect that the Veteran had severe impairments of major depression and disorders of the urinary tract, and determined that the Veteran had been disabled since August 2000. The December 2004 VA psychiatric examiner diagnosed recurrent severe major depressive disorder, without psychotic features, and assigned a Global Assessment of Functioning (GAF) score of 50. The United States Court of Appeal for the Federal Circuit has explained that the provisions of 38 U.S.C.A. § 5110 governing the effective date to be assigned for an increased rating require "that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims). Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 U.S.C.A. § 5110(b) (2); Gaston, 605 F.3d at 984. In this case, the evidence establishes that the Veteran was unemployable due to his service-connected disabilities, specifically his major depressive disorder and prostate cancer residuals, since at least September 2000, well before his formal claim for a TDIU rating was received on August 20, 2008. As such, the evidence does not suggest that the Veteran was unemployable in the one year prior to the August 20, 2008, date of claim. The Board finds, therefore, that a TDIU rating did not become factually ascertainable during the applicable time period so as to warrant an effective date earlier that the date of the Veteran's claim on August 20, 2008. Thus, the RO has already assigned the earliest possible effective date for the Veteran's TDIU rating, and an effective date prior to August 20, 2008, for the award of a TDIU rating is not warranted. ORDER An effective date prior to August 20, 2008, for the grant of TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs