Citation Nr: 1301402 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 11 28-594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to October 17, 2007, for the grant 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 S. Lipstein INTRODUCTION The Veteran served on active duty from July 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2012. A transcript of those proceedings has been associated with the Veteran's claims file. Please note this 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 2006 RO decision granted service connection for right and left upper and lower extremity peripheral neuropathy, status post cold injury exposure, assigning 10 percent disability ratings for each extremity, as well as service connection for bilateral hearing loss with a noncompensable disability rating, for a combined rating of 40 percent, effective February 28, 2006. 2. The Veteran has not asserted that the August 2006 RO decision that assigned a combined rating of 40 percent, effective February 28, 2006, was clearly and unmistakably erroneous (CUE). 3. In November 2006, the RO received a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), which claim was denied in an unappealed March 2007 rating action. 4. VA treatment records dated in late November 2006, indicate that Veteran had fallen as a result of nerve damage produced by his cold weather injuries 5. VA treatment records dated in January 2007, show the Veteran had fallen again, and it had become necessary for the Veteran to use a walker to ambulate, due to his service connected disability. 6. On October 17, 2007, the Veteran filed an informal claim for an increased rating. 7. The medical evidence during the one-year prior to October 17, 2007, shows that the Veteran's service-connected disabilities increased in severity so as to produce severe incomplete paralysis in the left and right lower extremity, and to preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of an earlier effective date to November 21, 2006, for TDIU benefits is granted. 38 U.S.C.A. §§ 5101(a), 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p)(r), 3.155, 3.157, 3.341, 3.400(o)(2), 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, however, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, (in this case entitlement to a TDIU rating), further notice under this law 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, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has reported continuing to receive VA treatment, the records of which have not been associated with the claims file. However, since the claims file contains VA treatment records through April 2008, and the Veteran is claiming entitlement to an effective date prior to October 17, 2007 for TDIU, any VA treatment records dated after April 2008 are not relevant to this claim. The Board thus 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 the Veteran will not be prejudiced by the Board's adjudication of his claim. With respect to the hearing held in this case, the Court noted in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. In this case, although the Veterans Law Judge (VLJ) did not explicitly note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's claim, the Veteran demonstrated actual knowledge of this information. The Veteran's statements specifically addressed the criteria for an earlier effective date. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the VLJ sought to identify any pertinent, outstanding evidence that might have been overlooked. The VLJ specifically asked the Veteran where he received his treatment. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). Further, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Criteria & Analysis In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. 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 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). VA regulations provide that a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected within one year of the date that notice of the determination is mailed to the claimant. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2012). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. §§ 3.340, 4.15. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (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). The Veteran's lower extremity cold weather injuries are evaluated under the provisions of Diagnostic Code 8521, which provide for a 30 percent evaluation when there is severe incomplete paralysis of the effected nerve. The record shows that by a rating action in August 2006, service connection was established for right and left lower and upper extremity peripheral neuropathy, status post cold injury exposure, each rated 10 percent disabling, and bilateral hearing loss, with a noncompensable disability rating assigned, for a combined disability rating of 40 percent. These disability ratings were made effective from February 28, 2006. The Veteran did not perfect an appeal to this rating decision. That decision is final in the absence of a finding of CUE. The Veteran has not specifically raised the issue of CUE in the August 2006 RO decision. On November 17, 2006, the RO received a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In a March 2007 rating action, that claim was denied as the Veteran did not meet the minimum schedular requirements for an award of the benefit, and it was determined the evidence did not otherwise factually show he was unemployable due to his service connected disabilities. The Veteran did not submit a notice of disagreement with this decision, and it too, is considered final after one. The Veteran has not specifically raised the issue of CUE in this decision. On October 17, 2007, the Veteran filed a claim for an increased evaluation. In a February 2008 rating action, the Veteran's upper and lower extremity disabilities were each increased to a 20 percent evaluation, effective from October 2007. This yielded a combined disability evaluation of 70 percent. He was subsequently awarded TDIU benefits in an April 2009 rating action, effective from January 2009. Apparently, following a review by a "special claims processing unit at the Cleveland Regional Office know as the Tiger Team," (as described in a November 2010 letter to the Veteran), an earlier effective for the award of TDIU benefits was granted to October 2007. This appeal of that decision ensued. As indicated above, as evaluated by the RO, the Veteran did not meet the schedular criteria for an award of TDIU benefits until October 2007, when his combined evaluation became 70 percent. However, VA treatment records dated November 21, 2006 show the Veteran was treated for a fall brought about by a loss of sensation caused by his service connected cold weather injuries. Records dated in January 2007, show that the Veteran had fallen again, and it was again indicated that the residuals of the Veteran's cold weather injury as effecting his lower extremities had precipitated this fall. It addition, it was noted that the Veteran was now using his walker constantly, whereas earlier he had been using a cane. Later records show follow-up treatment for injuries the Veteran apparently sustained in these falls, which the additional observation made that the Veteran's shoes were worn due to his foot drop/drag. In the Board's view, this evidence satisfactorily shows the residuals of the Veteran's lower extremity cold weather injuries may be considered to have produced severe incomplete paralysis of the external popliteal nerve as to warrant a 30 percent evaluation for each lower extremity from November 21, 2006. This increased evaluation for the lower extremities, yields a combined disability evaluation of 70 percent. When this increased impairment within one year of the Veteran's October 2007 claim for benefits is considered with the already acknowledged loss of dexterity and strength in the upper extremities caused by service connected disability, the criteria for a total disability rating based on individual unemployability have been shown. Under the criteria set out above for assigning effective dates, TDIU benefits should be effective from November 21, 2006, and to this extent the appeal is granted. ORDER An effective date for the award of TDIU benefits from November 26, 2006, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs