Citation Nr: 1310148 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-26 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than September 2, 2008, for the grant of a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which, in pertinent part, granted entitlement to a TDIU effective September 2, 2008. The Veteran has appealed the effective date for the award of a TDIU. Under applicable regulation, a hearing on appeal will be granted if a veteran expresses a desire to appear in person. 38 C.F.R. § 20.700 (2012). In a June 2010 substantive appeal (VA Form 9), the Veteran indicated that he did not want a Board hearing; however, in a November 2012 statement (VA Form 646), the Veteran's representative indicated that the Veteran would provide more testimony at his BVA hearing. Because a hearing request was not of record, the Board requested clarification from the Veteran in a February 2013 letter, asking him if he would like to attend a hearing before the Board, and if so, to indicate whether he wished to appear for at an-person hearing in Washington, D.C., at a travel Board hearing at the RO, or at a videoconference hearing at the RO. The Veteran was advised that if he did not respond within 30 days from the date of that letter, the Board would assume that he did not want a new hearing and would proceed accordingly. A copy of the February 2013 letter was sent to the Veteran's accredited representative. To date, the Veteran has not submitted a response to the February 2013 letter. Accordingly, the Board will assume that the Veteran does not wish to appear for a hearing in conjunction with his appeal. FINDINGS OF FACT 1. The Veteran submitted an informal claim for a TDIU on September 29, 2004; there were no communications received prior to this time that could be construed as a formal or informal claim for service connection. 2. From September 29, 2004 to July 5, 2006, is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities (PTSD, tinnitus, and hearing loss). 3. From July 6, 2006, evidence of record established that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities. CONCLUSION OF LAW The criteria for assignment of an effective date of July 6, 2006, and no earlier, for the grant of a TDIU have been met. § 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The Veteran's current appeal is for an earlier effective date for the grant of a TDIU. Earlier effective date claims are generally considered to be "downstream" issues from the original grants of a claim if appealed from that initial grant. VA's General Counsel has promulgated an advisory opinion holding that separate notice of the VA's duty to assist the Veteran of his or her concomitant responsibilities in the development of a claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. VAOPGCPREC 8-2003. In June 2009 letter, the RO provided preadjdicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for a TDIU as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The June 2009 VCAA notice letter also included provisions for the effective date of a claim. The RO granted entitlement to a TDIU in September 2009. Consequently, the Board finds that VA has provided the Veteran with adequate VCAA notice. With regard to the appeal for an earlier effective date, the Board finds that no VCAA notice is necessary because, the outcome of the appeal for an earlier effective date claim depends exclusively on documents which are already contained in the Veteran's record. The United States Court of Appeals for Veterans Claims (Court) has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by the failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice is not required where there is no reasonable possibility that additional development will aid the claimant). The Board therefore finds that VA's duties to notify and assist contained in the VCAA are not applicable to this claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA treatment records, VA examinations, and the Veteran's statements have been associated with the claims file. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Effective Date and TDIU Law and Analysis The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2012). In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r) (2012). The effective date of an award based on a claim for increase of compensation "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) (West 2002). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1) (2012). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). 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). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a) (2012). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b) (2012). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). The Veteran submitted a formal claim for increased compensation based on unemployability (VA Form 21-8940) in September 2, 2008. In the September 2009 rating decision, the RO granted a TDIU, effective September 2, 2008. The Veteran disagreed with the effective date assigned. The record shows that Veteran submitted a claim for service connection for PTSD in on September 29, 2004. Prior to this, the Board finds that there are no documents of record that could be reasonably construed as a formal or informal claim for a TDIU. In conjunction with the September 29, 2004 claim for service connection for PTSD, the Veteran asserted that he was "unable to maintain," and was "beginning again to have another bad episode with employment." He stated that he believed he was unemployable. In a January 2005 rating decision, the RO granted service connection for PTSD and assigned an initial 70 percent rating, effective September 29, 2004, the date of the claim. The RO did not adjudicate a claim of entitlement to a TDIU at that time. The Board finds that the September 29, 2004 claim for service connection for PTSD was also an informal claim for a TDIU. Having determined that September 29, 2004 is the date of the claim for purposes of assigning an effective date, the Board must next determine when it was "factually ascertainable" that the criteria for a TDIU were met beginning September 29, 2004. TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b) (2012). 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). In evaluating a Veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 38 C.F.R. §4.16(a). The Veteran was service connected for PTSD, rated 70 percent disabling, effective September 29, 2004. The Veteran was additionally service-connected for bilateral hearing loss, rated as 0 percent disabling, and tinnitus, rated 10 percent disabling, both effective July 20, 2005. The Board finds that from September 29, 2004, the Veteran met the threshold requirements for a TDIU. Therefore, application of a TDIU is appropriate so long as the severity of the Veteran's service-connected disabilities warrant such a rating during the applicable time period. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The next step is to determine whether, from September 29, 2004, the Veteran is unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). Based on the evidence of record, the Board finds that from July 6, 2006, the evidence of record establishes that the Veteran was unemployable due to his service-connected PTSD. The Board finds that prior to July 6, 2006, it is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities (PTSD, tinnitus, and hearing loss). An October 2004 VA examination shows that the Veteran worked at the Purina Company for 24 years post-service, but since 1990 had changed jobs frequently. At the time of the examination, the Veteran was working as a truck driver and was also working at a job inspecting irrigation ditches. In January 2006, the Veteran's VA treating psychiatrist recommended that the Veteran enter inpatient treatment for his alcoholism, and perhaps subsequently inpatient treatment for PTSD. The Veteran was provided a letter to submit to his employers in this regard. The Veteran continued to work at his water ditch job at that time. A March 2006 psychiatric progress note shows that the Veteran did not enter the inpatient treatment program, and that he was afraid to show his boss the letter because he was afraid that he might lose his job. The Veteran's treating physician opined that although the Veteran tenuously held a job with tremendous effort, it was believed that he should be recognized as not competitively unemployable due to the effects of PTSD. A May 2006 psychiatric progress note clarified that the Veteran had kept his trucking job because he needed the money, and he continued with his water ditch work as well, but found both of these jobs to be stressful and tenuous. The VA psychiatrist noted his earlier March 2006 discussion with regard to the Veteran's unemployability. A June 2006 VA treatment report shows that the Veteran was seen with complaints of knee pain, and that he continued to work as an engineer digging irrigation ditches. Based on the evidence discussed above, the Board finds that prior to July 6, 2006, it is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The evidence of record does not indicate significant occupational impairment due to service-connected bilateral hearing loss or tinnitus from September 29, 2004 to July 6, 2006. From September 29, 2004 to July 6, 2006, the evidence of record indicates that the Veteran had maintained employment at two separate jobs, one with a trucking company, and one inspecting irrigation ditches. While VA psychiatric treatment reports dated March 2006 and May 2006 show that employment was stressful for the Veteran due to his PTSD and that his employment was tenuous in nature due to this stress, the Veteran nonetheless continued to work at both jobs and there is no indication from the record, prior to July 6, 2006, that such employment was marginal in nature. While the March 2006 VA psychiatrist opined that the Veteran should not be recognized as "competitively employable" due to PTSD, the Board the finds, nonetheless, that the Veteran was employed and, thus, it is not factually ascertainable that he was unable to secure or follow a substantially gainful occupation at that time. There is no indication from the record, prior to July 6, 2006, which suggests that the Veteran's employment was either marginal in nature or that the Veteran was not earning a living wage based on his employment. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The March 2006 VA psychiatrist's assessment of the Veteran as being not competitively employable appears to be based on a discussion of the tenuous and stressful nature of the Veteran's employment at that time, and was not based on any assessment as to the number of hours he was working or the amount he was earning. Insomuch as the Veteran asserts that he was unemployable at the time of his September 2004 claim, the Board finds that while the Veteran is competent to describe his state of employment, the specific issue of whether the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities, to include a service-connected psychiatric disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Despite the Veteran's assertions that he was unemployable in September 2004, an October 2004 VA examination and VA treatment records dated in March 2006 and May 2006 show that the Veteran was actually maintained the same jobs, working with a trucking company and doing ditch work, during time period from September 29, 2004 to July 6, 2006. Thus, the Board finds that the Veteran's lay assertions about his state of employability are not entirely credible and are of limited probative value. From July 6, 2006, the Board finds that the evidence of record established that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. A July 6, 2006 VA psychiatry progress note states that the Veteran "continues his marginal employment," and the Board finds that this is the earliest evidence of record which suggests that the Veteran's employment was marginal in nature. See Moore, 1 Vet. App. 356. During a July 2006 VA psychiatric examination, the VA examiner opined that the Veteran was "not employable due to his PTSD and depressive symptoms." This opinion was based on examination of the Veteran and a review of the claims file, to include a discussion of the Veteran's current employment status. The VA examiner reasoned that the Veteran was at high risk for violent outbreaks in the workplace, and was barely tolerating the social contact that he encountered in the workplace, referencing the March 2006 VA psychiatrist's opinion. The examiner, however, also opined that the Veteran would be able to return to an employable status if he were able to achieve sobriety and enjoy some relief from his depressive and PTSD symptoms should he successfully engage in treatment. In a September 2008 formal claim compensation based on unemployability, the Veteran submitted current employment data, indicating that he was working 15-20 hours a week as a ditch rider at two different companies. The dates of employment were not indicated; thus, based on the information provided by the Veteran, it is unclear whether he was working a total 30-40 hours a week at two different companies, or whether this work was consecutive. The Veteran did state, however, that he had not been employed full time since 2005. A June 2009 VA examination was completed by the same VA examiner who conducted the July 2006 VA examination. The VA examiner provided some clarification with respect to his earlier opinion, stating that the Veteran had been "unable to maintain full-time employment, and had worked part-time in a seasonal job in which he had very little contact with others." He reaffirmed his earlier opinion, stating that PTSD had resulted in individual unemployability due to persistent danger of hurting himself and others. The Board finds that the July 2006 VA examination provides competent, credible, and probative evidence showing that the Veteran was unemployable due to PTSD, that the July 6, 2006 VA psychiatry progress is the earliest evidence of record which shows that the Veteran's employment was marginal in nature. The later June 2009 VA opinion provides further clarification with regard to the nature of the Veteran's employment, indicating that the Veteran was only working part-time at a seasonal job, and that he was unable to maintain full-time employment. For the reasons discussed above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the July 2006 VA examination establishes that unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD, and the July 6, 2006 VA psychiatry progress is the earliest date in which the evidence of record indicates that the Veteran's employment was marginal, and not substantially gainful. For these reasons and resolving the benefit of the doubt in favor of the Veteran, the Board finds that July 6, 2006 is the earliest date in which factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities (PTSD, tinnitus, and hearing loss). Therefore, the Board finds that an earlier effective date of July 6, 2006 is warranted for the grant of a TDIU. ORDER An earlier effective date of July 6, 2006 is granted for the award of a TDIU, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs