Citation Nr: 1309784 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-41 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than March 1, 2004, for the assignment of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from July 1964 to July 1966, and from January 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which-in pertinent part granted a TDIU, effective May 11, 2005. In July 2011, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The RO completed the additional development as directed, awarded an earlier effective date of March 1, 2004, and returned the case to the Board for further appellate review. In addition to the paper claims folder, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT 1. The RO completed the additional development directed in the July 2011 Board remand by seeking relevant records from the Social Security Administration and granting part of the benefits sought on appeal. 2. The preponderance of the evidence of record shows that VA received the Veteran's claim for service connection and an increased rating on February 7, 2003. The medical evidence of record does not show an increase in the severity of the service-connected right ankle disability prior to that date. 3. The Veteran was awarded a temporary total evaluation for the period February 7, 2003, to February 28, 2004. CONCLUSION OF LAW The criteria for an effective date earlier than March 4, 2004, for award of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.159, 3.400 and 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a TDIU and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. Nonetheless, the Board notes a June 2009 RO letter informed the Veteran how effective dates are assigned. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Board remanded the case so the RO could seek any records extant related to the Veteran's receipt of disability benefits from the Social Security Administration. That agency informed the RO in March 2012 that no records related to the Veteran were on file. Neither the Veteran nor his representative has asserted that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Hence, the Board may address the merits of the claim without prejudice to the Veteran. The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Legal Requirements VA law and regulation 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). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the date of receipt of the claim or the date entitlement arose; or, the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. See 38 C.F.R. § 3.400(o). Thus, if a claim is received after the increase in disability is demonstrated, but the increase occurred within the prior one year period then the effective date will be assigned as of the date of the ascertainable increase. In addition, the Court Of Appeals For Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise, in other words, that 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. Also, with regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or 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. 38 C.F.R. § 3.157 provides that 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. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Analysis The Veteran asserts that he has been unable to work since 2001. Thus, he believes that he is entitled to that effective date. The Board finds that the evidence of record refutes that assertion. A December 1997 VA Form 28-1910, which is a payment voucher used by the auspices of the VA Vocation, Rehabilitation, and Education (VR&E) program, reflects the Veteran was paid benefits under VR&E. VA outpatient records of February 2002 note the Veteran was a full-time student. In a January 2003 physical therapy note, the Veteran reported that he was taking off four months from school to allow time to heal from his right total hip replacement. The Board notes that, while a Veteran eligible for VR&E is deemed significantly disabled, to qualify for VR&E as the Veteran did, it must be shown that VR&E and employment are feasible despite the service-connected disability. See 38 C.F.R. §§ 21.1(a) and 21.53. The Veteran reported as much in his February 2003 statement (VA Form 21-4138). Hence, the Board finds the preponderance of the evidence shows the Veteran was pursuing his then regular "employment" in 2001 through 2003, which was as a student. Even were the above not the case, there is no evidence of an informal or formal claim for an increased rating prior to February 2003. From 2001 to February 2003, the outpatient records do not indicate a worsening of the service-connected right ankle which may have constituted an informal claim for an increased rating. Entries related to the right hip cannot constitute an informal claim, as that disorder was not service-connected prior to February 2003. 38 C.F.R. § 3.157. The Veteran's VA outpatient records also note his reports that it was his right hip that impacted his ability to attend school, not his right ankle. As noted earlier, it was the then nonservice-connected right hip replacement that caused him to stop school. Up to 2003, the Veteran's sole service-connected disability was the right ankle. On February 7, 2003, VA received the Veteran's claim for entitlement to service connection for his right hip as secondary to his service-connected right ankle disability and for an increased rating for the right ankle. He also applied for a temporary total evaluation, as he was pending the total right hip replacement. The Veteran asserted on the claim that he would have to quit school as a result of the surgery. It was not until the May 2005 Board hearing that the Veteran asserted he was unable to work due to the right ankle. In any event, VA received the Veteran's claim for service connection for the right hip and for an increased rating for the right ankle on February 7, 2003. As noted, the outpatient records do not indicate a worsening of the right ankle that would extend the window of entitlement back to February 2002. Thus, February 7, 2003, is the earliest effective date for which either service connection or a TDIU may be assigned. 38 C.F.R. § 3.400 and 3.400(o). As noted earlier, the September 2007 rating decision awarded a temporary total evaluation for the period February 7, 2003, to February 28, 2004. A May 2012 rating decision granted an earlier effective date by making the total rating permanent rating the day following the expiration of the temporary rating, March 1, 2004. Hence, the preponderance of the evidence shows the Veteran's effective date was properly assigned as required by applicable regulation. 38 C.F.R. § 3.400 and 3.400(o). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an effective date earlier than March 1, 2004, for the assignment of a TDIU is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs