Citation Nr: 1302809 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-36 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than June 14, 2006 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to June 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted TDIU and assigned an effective date of June 14, 2006. The issue of whether there is clear and unmistakable error (CUE) in an April 2002 rating decision in which the RO denied entitlement to TDIU, was explicitly raised by the Veteran's representative in a Memorandum dated June 14, 2006 that the RO accepted as a new claim of entitlement to TDIU. That request for revision of the April 2002 decision has not been adjudicated by the Agency of Original Jurisdiction (AOJ), which is the RO in this case. The Board therefore does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The RO denied TDIU in an April 2002 rating decision; the Veteran appealed that decision, and the RO provided a statement of the case (SOC) to the Veteran and his representative on August 14, 2003. 2. Although notified of his need to do so, the Veteran did not complete his appeal of the April 2002 rating decision in which the RO denied TDIU and issued an August 2003 SOC; the RO closed the case. 3. A Memorandum dated June 14, 2006 was the first correspondence or evidence relevant to the Veteran's entitlement to TDIU received by the RO after it mailed the August 2003 SOC to the Veteran. 4. No evidence of record between June 14, 2005 and June 14 2006 shows that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The April 2002 rating decision that denied entitlement to a TDIU is final. 38 U.S.C.A. § 7105 (2002); 38 C.F.R. § 20.1103 (2012). 2. The criteria for an effective date earlier than June 14, 2006 have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of entitlement to an effective date earlier than June 14, 2006 for the grant of TDIU, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012) The Veteran's claim arises from his disagreement with the effective date assigned following the grant of TDIU. Once a claim is granted it is substantiated, and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A. No outstanding evidence has been identified that has not otherwise been obtained. 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 the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits It is noted that, in general, a total disability rating for compensation may be assigned, were the schedular rating is less than total, when the disables person is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation. 38 C.F.R. § 4.16 (2012). Such a rating is referred to as TDIU. The Veteran contends that the proper effective date of grant of TDIU is December 21, 2001, the date that he first filed a claim of entitlement to TDIU, rather than the June 14, 2006 date the RO has assigned. The basic facts of this case are not in dispute. VA first received a claim of entitlement to TDIU from the Veteran on December 21, 2001. The RO denied that claim in an April 2002 rating decision, mailed notice of that decision and of the Veteran's procedural and appellate rights to the Veteran in May 2002, and copied that notice to his representative. In May 2002, the Veteran filed a notice of disagreement with that decision, thus initiating an appeal of the decision to the Board. He also submitted a statement in which "C.C.," M.D. discussed the Veteran's service connected lower extremity disabilities and stated that due to these disabilities he was 100 percent disabled. On August 14, 2003, the RO mailed an SOC to the Veteran and his representative with regard to the denial of TDIU. That SOC indicates that the RO took Dr. C.C.'s letter into consideration as well as an additional statement of the Veteran, VA treatment notes dated from November 2002 to July 2003, and February 2001 employment information. In the letter accompanying the SOC, the RO informed the Veteran and his representative that the Veteran had the later of 60 days from the date of that letter or 1 year from the date he was notified of the decision, to complete his appeal. Enclosed with the letter was a VA Form 9, Appeal to Board of Veterans' Appeals. The RO informed the Veteran that if it did not hear from him within that time frame, it would close his case. No document was received within one year of the rating decision (December 21, 2002) or 60 days of the SOC (October 14, 2003) and the RO closed the case. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Date of receipt means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for an increased disability rating. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if a claim for an increased rating is received within one year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2012); VAOPGCPREC 12-98, 63 Fed. Reg. 56,703 (Oct. 22, 1998). A claim of entitlement to TDIU is a claim for an increased rating. See Dalton v. Nicholson, 21 Vet. App. 23, 32 (2007). This case turns on which claim gave rise to the grant of TDIU. The law regarding the finality of decisions determines the operative claim a far as the issue on direct appeal to the Board. Once an AOJ issues a decision, it is final and binding on all other VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104. 38 C.F.R. § 3.104(a) (2012). Final RO decisions shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 105 and 38 C.F.R. § 3.2600. Id. Previous determinations that are final and binding, including decisions degree of disability, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2012). Under 38 C.F.R. § 3.105, final decisions that were based on CUE may be revised. An allegation of CUE in an RO or Board decision is a collateral attack on a final decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). Under 38 C.F.R. § 3.2600 (2012), RO decisions that have not yet become final by appellate decision or failure to timely appeal may be granted by a Decision Review Officer, Veterans Service Center Manage, or Pension Management Center Manager. In general, a final decision of the RO may not thereafter be reopened or allowed. 38 U.S.C.A. § 7105(c). As noted in the INTRODUCTION, the appeal decided by the Board in the instant decision has come to the Board on direct appeal of the September 2008 rating decision. In June 2010, the Veteran's representative argued that the direct appeal of the September 2008 decision was inextricably intertwined with a request for revision of the April 2002 RO decision based on CUE and therefore the case was not ready to be certified to the Board. As with any decision of an RO, once the RO denies a request for revision of a decision based on CUE, such decision can be appealed to the Board. 38 U.S.C.A. § 7104(a) (West 2002). As the Veteran's allegations regarding CUE in the April 2002 rating decision have not been addressed by the RO the Board does not have jurisdiction to address those allegations in the first instance, and, as noted in the INTRODUCTION of this decision, the matter has been referred to the RO for proper action. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for an earlier effective date for the grant of TDIU while referring his allegation of CUE to the RO. Specifically, the Board questions whether the two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). There is no such relationship. The outcome of the Veteran's direct appeal of the effective date assigned for TDIU in the September 2008 rating decision is not dependent on the outcome of his request for revision of the April 2002 decision denying entitlement to TDIU. Nor does adjudication of his direct appeal preclude a successful collateral attack on the earlier decision. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has itself bifurcated and separately adjudicated the issues of entitlement to an earlier effective date and CUE based on similar contentions. Canady v. Nicholson, 20 Vet. App. 393, 402 (2006). Having determined that the earlier effective date is ripe for appellate consideration, the Board will next address the finality of the December 2002 rating decision. An appeal of an RO decision to the Board is initiated by the filing of a timely notice of disagreement and completed by a substantive appeal after an SOC is furnished. 38 U.S.C.A. § 7105(a). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C.A. § 7105(c)(3). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2012). If a claimant fails to respond after receipt of the SOC, the RO may close the case. 38 U.S.C.A. § 7105(d)(3). Once the RO closes the case for failure to complete the appeal to the Board, the RO decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a), 20.1103. Absent the submission of new and material evidence, a claim that has been the subject of a final RO decision may not be reopened and allowed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). Claims for increased ratings are considered new claims because they are based on an increase in disability since any previous claim was decided. With regard to claims that are reopened, the earliest date that of an awarded benefit is the date of receipt of the claim or the date that entitlement to the benefit arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o), (r). In general, the claimant is not required to submit new and material evidence to "reopen" a previously denied claim of entitlement to an increased rating because the more recent claim is considered to be an assertion that the disability or disabilities have worsened since the earlier claim and is therefore a new claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). Another subsection of 38 C.F.R. § 3.156 can, however, operate to prevent an RO decision from becoming final. As to pending claims, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If new and material evidence is received within the appeal period of a pending decision, and VA does not address such evidence, the decision does not become final. Cf. Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that when VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to 38 C.F.R. § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final). New evidence is evidence not previously submitted to agency decision makers and not simply cumulative or redundant of evidence already of record. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Id. Here, after the April 2002 decision, the RO considered the Dr. C.C.'s letter, VA outpatient treatment records through July 2003, an additional statement from the Veteran, and employment information when it issued the August 2003 SOC. Such functioned as a readjudication the claim that took this evidence into consideration. No other evidence was received within the appeal period that could be construed as new and material evidence. There are no constructively of record VA treatment records within the time period to complete the appeal. Thus, 38 C.F.R. § 3.156(b) did not operate to prevent the April 2002 decision from becoming final. Following the issuance of the SOC in August 2003, the first communication of record concerning the Veteran's entitlement to TDIU was the document titled as a Memorandum dated June 14, 2006 and received by VA on that date. In that document, the Veteran's representative contended that the April 2002 rating decision denying TDIU contained CUE and should be revised. The representative also stated that in the alternative VA should provide the Veteran with an examination and issue a new decision based on the date that gave rise to the April 2002 decision, December 21, 2001. Review of the claims file fails to disclose that, after the April 2002 decision became final, VA received any claim for TDIU earlier than June 14, 2006. There is no evidence dated between June 14, 2005 to June 14, 2006 showing that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. It is noted that records obtained from the Veteran's claim of entitlement to disability benefits from the Social Security Administration (SSA) include evidence of unemployability dated in June 2004. However, the U.S. Court of Appeals for the Federal Circuit has explained that the one year rule for increased rating claims requires that the claim for increased compensation 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 v. Shinseki, 605 F.3d at 984. Regardless of what is shown by the records obtained from the SSA, those records are earlier than June 14, 2005 and do not provide a basis for assigning an effective date earlier than June 14, 2006 for grant of TDIU. As there is no evidence of record within one year prior to June 14, 2006 showing that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, and no communication regarding entitlement to TDIU was received between August 2003 and June 14, 2006, the earliest effective date that can be assigned for the award of TDIU, absent a finding of CUE in an earlier decision, is the June 14, 2006 date already assigned. The preponderance of evidence is therefore against assigning an effective date earlier than June 14, 2006 for grant of TDIU and the appeal of the September 2008 decision must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than June 14, 2006 for the grant of TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs