Citation Nr: 1303085 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-34 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than November 23, 2008, for a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted the claim for TDIU effective from November 23, 2008, which was the day after the Veteran's employment had ended. In July 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VJL). At that time, the Veteran indicated that the only issue he wished to pursue on appeal was entitlement to an earlier effective date for his award of a TDIU. At that time, the undersigned VLJ agreed that the Board had jurisdiction over that issue. In particular, it was noted that even though the statement of the case (SOC) issued by the RO listed the issues on appeal as being entitlement to an increased rating and entitlement to a TDIU, the text of the SOC did discuss that a TDIU had been awarded and that the matter at issue was entitlement to an earlier effective date. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran worked as a mechanic 40 hours a week until November 22, 2008. 2. The record shows that the Veteran was unemployable since November 2008 due to a single service-connected psychiatric disability, rated at the 70 percent disability level from November 30, 2006. 3. VA received a formal claim on VA Form 21-8940 for TDIU on December 15, 2008 and had received no informal claim for increase prior to that date. 4. The Veteran was not unable to obtain or retain gainful employment prior to November 23, 2008. CONCLUSION OF LAW An effective date earlier than November 23, 2008, for an award of TDIU is not warranted. 38 U.S.C.A. §§ 5101, 5110, 5111 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that VA has met its duty to notify. The record reflects that VA sent to the Veteran all required notice in a January 2009 letter, prior to the rating decision on appeal. The Board also finds that VA has met its duty to assist. VA obtained all relevant records identified by the Veteran and provided him a hearing on appeal. The Board acknowledges that the Social Security Administration (SSA) awarded disability benefits to the Veteran and set November 22, 2008, as the date of onset. However, there is no reason to believe that the SSA records are pertinent to the claim for an earlier effective date for TDIU and, therefore, remand to obtain such records is not necessary. See Golz v. Shinseki, 590 F.3d 1317 (2010). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Effective Dates The law specifies that, unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o) (1) (2012). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year after that date. 38 U.S.C.A. § 5110(b) (2); 38 C.F.R. § 3.400(o) (2). In addition, the Court of Appeals for Veterans Claims has held it is axiomatic that, in the latter circumstance above, the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b) (2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase" for this purpose is one to the next disability level 'provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. It appears that Hazan, in part, stands for the proposition that a veil of finality may be pierced within the perimeters of 38 U.S.C.A. § 5110(b) (2). Stated differently, 38 U.S.C.A. § 5110(b) (2) is a partial exception to 38 U.S.C.A. § 5110a. This would be consistent with the language of 38 U.S.C.A. § 5110a "unless specifically provided otherwise in this chapter." Also, with regard to the terms "application" or "claim." the Board notes that, once a formal claim for compensation has been granted, receipt of a VA hospitalization report, a record of VA treatment, or a record of hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b) (1); see also 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.155(c) provides that, when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. Under 38 C.F.R. § 3.157, once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year thereafter. An appeal to the Board consists of a timely notice of disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. An NOD must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; and (5) be filed by the claimant or the claimant's authorized representative. While special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300; see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). A substantive appeal consists of a properly completed VA Form 9 (Appeal to the Board of Veterans' Appeals) or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the issuance of the SOC or within the remainder of the one-year period from the date of mailing notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). A substantive appeal should set forth specific allegations of error of fact or law related to specific items in the SOC and clearly identify the benefit sought on appeal. 38 U.S.C.A. § 7105(d) (3); 38 C.F.R. § 20.202. If a decision by the RO goes unappealed, it is final. A final and binding RO decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error (CUE), as provided in 38 C.F.R. § 3.105. 38 C.F.R. § 3.104(a). If a claimant wishes to reasonably raise CUE, "there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background VA received an original claim, VA Form 21-526, date stamped November 30, 2006, from the Veteran (signed September 12, 2006). He claimed disability to due to post traumatic stress disorder (PTSD). At that time, he submitted a private psychological assessment dated November 2006, reflecting that "He indicates his distress has significantly impacted his work, social, and intimate relationships." A Global Assessment of Functioning score of 45/50 was assigned. It was noted that the Veteran was currently employed as a mechanic and had 12 years of formal education. In February 2007, VA received a letter from a social worker indicating that the Veteran had participated in several joint therapy sessions with his spouse in an effort to work through marital issues. There was no discussion of the Veteran's employment situation or of his psychological problems on his ability to maintain work. Report of VA examination dated in April 2007 reflects that the Veteran currently worked for a company as a mechanic and had been employed by that company for the past 18 years. It was noted that he was placed on involuntary leave of absence from work since April 9 and was to return to work on April 30. The Veteran reported that his employer required him to take a paid leave of absence from work because of his anger problems and requested that he receive treatment. The Veteran was diagnosed with PTSD, chronic and severe; a GAF score for 47, current and highest past, was assigned. In an August 2007 rating decision, the RO granted service connection for PTSD and assigned a 70 percent disability rating, effective from November 30, 2007 (date of receipt of claim). The RO notified the Veteran of that decision in a letter dated in August 2007. No appeal was received as to the assigned disability rating or effective date. On April 27, 2007, VA received items from the Veteran: A duplicate copy of the February 2007 letter from a social worker; a letter dated in January 2007 from a physician J.M. indicating that he had treated the Veteran between May and July 2006 for psychiatric problems/symptoms and that "he continued full time work as a mechanic;" and a letter dated in April 2007 from a social worker indicating that the Veteran disliked his job but had remained in his job for almost 20 years and noting that "He reports to significantly struggle with work...". VA treatment records dated February to July 2008 reflects authorization of outpatient psychotherapy counseling. VA treatment note dated in September 2008 reflects that the Veteran was having anger and depression issues due to his job. In 2008, VA received correspondence from the Veteran pertaining to hypertension, tinnitus, and arthritis. There was no mention of psychiatric disability. VA received a formal claim for TDIU on VA Form 21-8940 (application for increased compensation based on individual unemployability), which was date stamped December 15, 2008. He reported that his last day of work was November 22, 2008, and that he became unable to work on this date. He reported that he worked as a mechanic 40 hours a week and that his last day of work was November 22, 2008. He noted that he had had 30 days administrative leave in 2007. Accompanying this form was a short note (undated) from a physician, K.D, to the Veteran's employer, which reflects that the Veteran was "experiencing a disabling medical condition" and that he required 3 months disability leave form work for recuperation. In February 2009, VA received evidence in support of the claim for TDIU from the Veteran. This included a copy of a memorandum titled "Plan for Improved Performance," which detailed the Veteran's work problems and the plan for improved performance; a summary of his meeting with management in May 2008, which reflects that the Veteran was not behaving in accordance with workplace safety and employment standards; and a private mental health evaluation dated in December 2008 reflecting "stress related to PTSD symptoms and work related stress." Report of VA examination dated in April 2009 reflects that, since going on disability leave, the SSA approved his disability claim. At this time, the Veteran was not working. It was noted that he had been employed successfully in the same company for 20 years but he was currently on medical leave due to his PTSD symptoms. The Veteran reported that he had ongoing difficulties with his supervisor that led to anger problems and great distress when he was at work. PTSD was diagnosed along with a major depressive disorder, and a GAF score for 45-50 assigned. The examiner commented that a large part of the Veteran's psychological distress was related to his work environment. In a July 2009 rating decision, the RO granted the claim for TDIU effective from November 23, 2008 (that day after the Veteran stopped working). In September 2009 (notice of disagreement), the Veteran argued that the TDIU effective date should be September 12, 2006. He submitted a copy of his original claim, page 5, which included his signature and the handwritten date of September 12, 2006. At his July 2012 hearing, the Veteran testified that the correct effect date should be November 30, 2006, the date of his original application for VA compensation and the effective date of the grant of service connection for PTSD. The Veteran argued that he had been unemployable prior to the official date his employment ended, noting that he was on medical leave. He further argued that, although he was technically employed prior to November 23, 2008, his employment was marginal because his performance was unacceptable as indicated by the evidence concerning his work. He indicated that, because he had been unable to perform his work in a supervisory capacity, his employer had reassign him to a position with less responsibility and interaction with people, but he continued to have anger and concentration issues. It was noted that the union had helped him keep his job although he was severely disabled and unable to work. The Veteran's spouse testified generally as to his behavior at home, which included wearing combat fatigues and camouflage, and keeping to himself-isolating. Analysis After careful review of the evidence, the Board finds that an effective date earlier than November 23, 2008, is not warranted because, although the Veteran believes that he met the criteria for TDIU prior thereto-his bases include that he had had a formal meeting with management to discuss his inattentiveness and anger at work, that the union had helped him keep his job, and that he required disability leave from his employment-the record shows that Veteran was, in fact, gainfully employed until November 23, 2008; and, therefore, the claim for an earlier effective date for TDIU must be denied. The Board notes that effective date assigned for TDIU predates VA's receipt of the claim. November 23, 2008, is the earliest date it is factually ascertainable that the Veteran was unable to obtain or retain substantially gainful employment. Notably on his TDIU claim he reported that he became unable to work on November 22, 2008, his last day of work. The Board finds that there is no record of an informal claim prior to receipt of the formal claim-and that, even had such been received, this is irrelevant as entitlement to a TDIU did not arise until November 23, 2008. The Veteran argues that the effective date of TDIU should be the date he signed his original claim for compensation (September 12, 2006) or should coincide with the effective date of the award of service connection for PTSD (November 30, 2006). As an initial matter, the Board finds that the date written by the claimant on the application for benefits is not the controlling date for the purposes of assigning effective dates. The applicable laws and regulations provide that, unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o) (1) (2012) (emphasis added). The Veteran's original claim includes a VA date stamp for November 30, 2006, and his TDIU claim includes a VA date stamp for December 15, 2008. The record show that the Veteran was not unable to maintain employment on or before November 30, 2006, when VA received his claim for service connection for PTSD; and that it was factually ascertainable that the Veteran was unemployable beginning on November 23, 2008-which is within the one-year period prior to receipt of his TDIU claim-due to service-connected PTSD. The Veteran argues that he was actually unemployable while still employed, or that he was only marginally employed. The Board acknowledges that the Veteran had significantly impaired work functioning prior to November 23, 2008, and that his employer took actions to improve the Veteran's job performance having recognized that he was experiencing difficulties performing the work. The Board further acknowledges that the Veteran took medical leave prior to his employment's termination. However, the Veteran's currently assigned 70 percent rating for PTSD already contemplates severe occupational impairment as a result of his disability, and the Board believes that this degree of disability encompasses the significant difficulties the Veteran was experiencing at the time. Furthermore, the Board disagrees with the Veteran interpretation of his situation as the employer's actions to accommodate his disability through counseling, reassignment, and disability leave is not tantamount to any termination of employment. The Veteran continued to be recognized as an employee and receive compensation until November 22, 2008, and his employment was not marginal. The Veteran's compensation exceeded the poverty threshold based on the annual income reported by him on his TDIU application and he was not employed in a protected environment. See generally 38 C.F.R. § 4.16(a). The Veteran's representative argues that 38 U.S.C.A. § 1163 and 38 C.F.R. § 3.343(c) supports the assignment of an earlier effective date. However, the Board notes that this law and regulation pertains to the reduction of total rating awards. These provisions have no bearing on the assignment of effective dates. In summary, although the Veteran met the schedular criteria for TDIU as of November 30, 2006, when the RO granted service connection for PTSD at the 70 percent disability level, he was employed full-time at that time. Contemporaneous evidence shows that PTSD significantly his impacted work at that time, but he was not described as unemployed or unable to obtain or retain gainful employment in either the lay or medical evidence. The Veteran maintained employee status with his company until November 22, 2008, and received employee compensation to include while on disability leave. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An effective date earlier than November 23, 2008, for the award of TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs