Citation Nr: 1308012 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-36 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 9, 1996. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to February 1961. This matter is on appeal from a July 2002, rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge in August 2011. A transcript of the hearing is of record. The procedural history of this case has been made somewhat complicated by the copious amounts of redundant and repetitive evidence submitted by the Veteran. For purposes of review, the Veteran submitted a claim in September 1994 seeking service connection for a bilateral knee disorder. Pursuant to an October 2000 Board decision, the RO ultimately granted service connection for both knees in a January 2001 rating decision, with 20 and 10 percent disability ratings for the left and right knee, respectively, effective September 1, 1994. In March 2001, the Veteran submitted a timely notice of disagreement to only the assigned ratings. In a July 2002 rating decision, the RO increased the Veteran's disability ratings to 30 percent in each knee. However, as he was not granted the maximum rating available for the entire period on appeal, the issue remained on appeal and was certified to the Board shortly thereafter. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). After the appeal was certified, he submitted a statement in September 2004 indicating his wish that the appeal be withdrawn. The appeal was dismissed by the Board in a December 2004 decision. During the course of that appeal, however, the Veteran submitted a claim in June 2001 seeking entitlement to TDIU. TDIU was granted in a July 2002 rating decision, effective November 8, 2000, the date of a VA examination that indicated that he was unemployable. In September 2002, he submitted a notice of disagreement to this rating decision. Although his statements as to what the appropriate effective date should be have been inconsistent, he has effectively asserted that it should be as early as March 1994. His appeal was perfected to the Board via a VA Form-9 submitted in December 2004. In September 2009, the RO issued a new rating decision, determining that there had been clear and unmistakable error (CUE) in its July 2002 rating decision, and assigned a new effective date August 9, 1996. Nevertheless, in view of the Veteran's assertions that he is entitled to an effective date since 1994, the issue remains on appeal. The United States Court of Appeals for Veteran's Claims has held that, when a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible, to include entitlement to TDIU if raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). While the specific facts of Rice are different than the issue here, the Court clearly acknowledged that TDIU is for consideration even in the case where the initial rating following service connection is in dispute. Rice, 22 Vet. App. at 452-53 ("the issue of whether a total disability rating will be assigned on this basis will be handled either during the determination of the initial disability rating assigned at the time the underlying disability or disabilities are found to be service connected or, if the veteran later asserts that his disability (or disabilities) has worsened, as a claim for increased compensation"). When the Veteran submitted a notice of disagreement with the initial rating for his bilateral knee disability in March 2001, the period on appeal extends back to the time he filed his original claim in September 1994. See Fenderson v. West, 12 Vet. App. 119 (1999). Under Rice, when he raises the issue of entitlement to TDIU during the period on appeal (as he did here in June 2001), it is also on appeal for the same period as the underlying increased rating claim. While the procedural history of this case has suggested that the issue on appeal is a question of clear and unmistakable error (CUE), addressed under 38 C.F.R. § 3.105, or a question of an earlier effective date under 38 C.F.R. § 3.400), this is incorrect. Rather, the issue on appeal is simply entitlement to TDIU for the period on appeal prior to August 9, 1996. See 38 C.F.R. § 4.16 (2012). The issue is characterized accordingly above. FINDINGS OF FACT 1. Prior to August 9, 1996, the Veteran was service connected for a bilateral knee disability with a 30 percent disability rating in each knee, which constitutes a single disorder with a 60 percent disability rating for TDIU purposes. 2. The evidence does not establish that the Veteran was unable to obtain gainful employment prior to August 9, 1996. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to August 9, 1996, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In this case, the Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the Veteran has demonstrated his knowledge of how entitlement to TDIU is established under VA regulations. As such, even if the notice he received did not specifically establish how TDIU is established, he would not have been prejudiced by this in any event. Therefore, no additional notice is required prior to the transfer and certification of the case to the Board, and there has been compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility While the Veteran has indicated that he submitted a claim for benefits to the Social Security Administration (SSA), the SSA submitted a statement in March 2010 that all records associated with his claim have been destroyed. As such, even though the Veteran's SSA records are not associated in the claims file, no further development is required in this regard. Next, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2011. This hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about when he became unemployed, and why he believes that his service-connected disabilities render him unemployable. Significantly, he has not indicated that he has been prejudiced in his hearing. Accordingly, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to TDIU Total disability is considered to exist when there is present any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Accordingly, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU prior to August 9, 1996. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Based on a September 2009 rating decision, the Veteran is already in receipt of a TDIU rating for the period since August 9, 1996. This effective date was based on a July 2000 SSA decision, which determined that he was unemployable since that time. Unfortunately, the SSA indicated in March 2010 that the treatment records and statements that were submitted in support of that claim were since destroyed and, while the record includes the SSA's determination, none of the supporting evidence is available. The Veteran asserts that he is entitled to TDIU since as early as March 1994. The Board notes at the outset that there would be no basis for a TDIU rating prior to September 1, 1994, as he was not service connected for any disability prior to that date. For the remaining period on appeal (Sept 1, 1994 until August 8, 1996), he was service connected only for a bilateral knee disability, with a 30 percent rating in each knee. His total disability rating was 60 percent. Although his knee disabilities are evaluated independently, disabilities to one or both lower extremities will be considered a single disability for purposes of TDIU. See 38 C.F.R. § 4.16(a). Therefore, for purposes of TDIU, he has a single disability that is rated at 60 percent, and meets the schedular criteria for this benefit. However, the Board nevertheless determines that TDIU is not warranted prior to August 9, 1996, as there is no competent evidence that he was unemployable prior to this date. Specifically, the treatment records from the period on appeal reflect that he was treated for knee symptoms on a number of occasions. For example, X-rays in April 1994 indicated degenerative joint disease in both knees, but there was no discussion of his employment situation. Similar findings were observed in subsequent evaluations in November 1994 and May 1995, but there were no indications of his employability at that time. Also, even though he submitted statements in September and October 1994 regarding his disorders, he did not assert that he was unemployable due to his knee disabilities. Indeed, he did not even indicate he was unemployed. The Board also places significant probative value on the findings set forth in the July 2000 SSA decision. There, the SSA concluded that the Veteran "has not engaged in substantial gainful work activities since his amended alleged onset date of August 9, 1996." Thus, according to the SSA decision, it was the Veteran's own assertion that August 9, 1996 was the date he was unemployed. Such statement contradicts his more recent assertions that he has been without gainful employment since 1994. In support of his argument, the Veteran has submitted a number of statements indicating that he has been unemployed since March 1994 due to his service-connected disabilities. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is certainly competent to testify when he was employed, and how his service-connected disabilities impact his occupational functioning. However, the Board stresses that TDIU requires more that merely being unemployed, but also requires competent medical evidence indicating that he is unemployable due to his service-connected disabilities. In this regard, the Veteran is not competent to state whether he is unemployable, as this is a conclusion that a medical professional must make. In relying on the SSA determination, the Board notes that the adjudicating authority relied on an exhaustive amount of evidence, including a "daily living questionnaire" from November 1994, a transcript of a hearing held in September 1996, numerous treatment records from private physicians from 1990 through 1997, an orthopedic evaluation report from February 1998 as well as numerous letters from the Veteran to the SSA. The fact that the SSA, despite all of this evidence, concluded that the Veteran was disabled no earlier than August 9, 1996 strongly suggests that was not unemployable prior to that time. As such, even if the Veteran were competent to assert that he has been unemployable since as early as March 1994, the probative value of such assertions is significantly diminished by the evidence considered by the SSA. See Pond v. West, 12 Vet. App. 341 (1999) (in weighing credibility, factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain). Moreover, it should also be pointed out that the SSA considers the Veteran's entire disability picture, while VA must confine its analysis to only his service-connected disabilities. As the evidence from 1994 and 1995 indicates that he was being treated for disorders other than his knee symptoms, the RO has afforded the Veteran the benefit of the doubt in presuming that he was unemployable as of August 9, 1996 only because of his knee disabilities. Therefore, in the absence of competent evidence that the Veteran was unemployable prior to August 9, 1996, TDIU prior to that date is not warranted and the appeal is denied. ORDER Entitlement to TDIU prior to August 9, 1996, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs