Citation Nr: 1311529 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-48 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to October 30, 2007 for the grant of entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disabilities. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the RO. The RO granted the Veteran's claim of entitlement to a TDIU, effective FINDINGS OF FACT 1. On October 14, 2003, the RO received the Veteran's claim of entitlement to service connection for PTSD. 2. In April 2004, the RO denied the Veteran's claim of entitlement to service connection for PTSD. 3. In his notice of disagreement, received by the RO on July 16, 2004, the Veteran, through his then-representative, stated that he was seeking service connection for his PTSD, either at the 100 percent rate or at the rate of 70 percent plus a TDIU. 4. By a rating action in November 2007, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 70 percent disability rating, effective October 14, 2003. 5. In August 2009, the RO granted the Veteran's claim of entitlement to a TDIU and assigned an effective date of October 30, 2007. 6. The preponderance of the evidence shows that since July 16, 2004, the Veteran has been precluded from securing or following a substantially gainful occupation, primarily due to the manifestations of his PTSD. CONCLUSION OF LAW The criteria are met for an effective date of July 15, 2004, for the grant of a TDIU. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to an effective date prior to October 30, 2007 for the grant of entitlement to a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. On October 14, 2003, the RO received the Veteran's claim of entitlement to service connection for PTSD. On several occasions, such as in December 2003, August 2005, and February 2006, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; statements from his wife, stepfather, and former fellow serviceman; the report of a February 2004 psychiatric evaluation by W. A. A., M.D. and W. E. C., Ph.D.; the transcript of a March 2006 hearing held at the RO before a Veterans Law Judge regarding the issue of service connection for PTSD; and the reports of VA examinations, performed in February2004, April 2005, and October 2007. In sum, the Veteran was afforded a meaningful opportunity to participate in the development of his claim of entitlement to service connection for PTSD In November 2007, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 70 percent disability rating, effective October 14, 2003, the date of the receipt of his original claim. In conjunction with that decision, it was noted that the Veteran also sought entitlement a TDIU In February 2008, VA also notified the Veteran of the information and evidence necessary to substantiate and complete his TDIU claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. In addition, VA informed him of the criteria for a TDIU. In August 2009, VA examined the Veteran to determine whether he was unable to secure and following a substantially gainful occupation due to his service-connected disabilities. In August 2009, the RO granted the Veteran's claim of entitlement to a TDIU and assigned an effective date of October 30, 2007. The Veteran disagreed with that effective date, and this appeal ensued. Inasmuch as it is derived from the initial TDIU claim, the issue of entitlement to an earlier effective date for the Veteran's TDIU is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate that issue, such notice is not required in this case. In December 2003, VA General Counsel issued a precedential opinion stating that, if VA received a notice of disagreement in response to a decision on a claim for which VA had already sent the veteran a duty to assist letter, and the NOD raised a new issue, the duty to assist the veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. See VAOGCPREC 8-03, 69 Fed. Reg. 25180 (2004). The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). Hence, VA has essentially complied with its duty to assist the veteran in the development of his claim of entitlement to an increased rating for bilateral hearing loss disability. Accordingly, the Board will proceed to the merits of that portion of the appeal. The Merits of the Appeal A TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.18 and 4.19 (2012). A TDIU may be granted under 38 C.F.R. § 4.16(a) (2012), if he meets certain schedular rating requirements, or on an extra-schedular basis under § 4.16(b), even if he does not, so long as he is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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 for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). The Court has held that a request for a TDIU "is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability." That is, the TDIU claim is a derivative of the initial claim for service connection for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).; see also, Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The effective date for an increased rating [for a disability once service connected] will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2012). The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "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). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified (see Stewart v. Brown, 10 Vet. App. 15, 18) (1997), but need not be specific (see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992)). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). VA is, then, required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3) ; 38 C.F.R. §§ 3.1(p) , 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Normally, the effective date assignable for an increased rating and/or TDIU rests on two separate, relatively simple determinations. See 38 C.F.R. § 3.400(o)(1) and (2) (2012). First, there needs to be a finding as to the date on which the appellant initiated his increased rating/TDIU claim by formal or informal claim. Second, there needs to be a finding regarding on what date the medical evidence of record showed his entitlement to a higher rating or TDIU arose, that is, at what point in time in the case of a TDIU did his service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. See 38 U.S.C.A. § 5110(b) (West 2002); 38 C.F.R. §§ 3.151, 3.400(o), 4.15, 4.16 (2012). Turning now to the facts of this particular case, the record reflects that the Veteran's original claim for service connection for PTSD was received by the RO on October 14, 2003. In addition, he sought service connection for tinnitus and a hearing loss disability. In December 2003, the Veteran reported that after more than 34 years he had retired from his job with an affiliate of General Motors. In February 2004, the Veteran was examined by VA to determine the nature and etiology of his claimed tinnitus, hearing loss disability, and PTSD. During his PTSD examination, he stated that he had been a spray painter for the General Motors affiliate and that he had retired in September 2003. He had reportedly been told that he could transfer because of health problems or retire. He had also been told that if he did not retire, he would lose 5 years of retirement. It was noted that at the time of the VA examination, he was active, at least part time, in his own business mowing fields, putting gravel down on driveways and grading it, and performing snow removal. Following the examination, the relevant diagnoses were depressive disorder, not otherwise specified and alcohol dependence (in remission by self-report). The examiner assigned a GAF of 70. GAF is the score on the Veteran's Global Assessment of Functioning Scale and is relevant to an evaluation of the level of impairment caused by PTSD. That scale is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2012). A GAF of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. DSM IV at 32. A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Id.; see Carpenter v. Brown, 240, 242 (1995). A GAF score of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id.; see Richard v. Brown, 9 Vet. App. 266, 267 (1996)). A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). Id.; see Brambley v. Principi, 17 Vet. App. 20 (2003) (J. Steinburg concurring) (A GAF of 40 signifies considerably greater occupational impairment than a GAF of 50.) In February 2004, four days after the VA examination, the Veteran underwent a private psychiatric evaluation by W. A. A., M.D. and W. E. C., Ph.D. The Veteran stated that he had been forced to retire October 1, 2003. He had reportedly been informed that if he didn't, he would have lost 5 years of seniority. He stated that following his retirement, he had started his own business, sort of a multiple-faceted gigantic handyman. He reported that he did tiller work, garden work, yard work, and rough landscaping; built animal stalls, haylofts, fences, corrals, and driveways; did electrical and air conditioning work; and ran water lines. Following the examination, the relevant diagnosis was PTSD, chronic and severe. The Veteran was assigned a then-current GAF of 40 with a GAF of 45 during the previous 12 months. As noted above, a GAF of 40 indicates that, among other things, an individual is unable to hold a job. However, the VA examination and the private psychiatric evaluation clearly show that he was in business for himself. In December 2009, the Veteran's representative suggested that the Veteran's business constituted sheltered employment rather than substantially gainful employment. While it is true that a sole proprietor may set his own hours and take breaks as he or she sees fit, such a business is hardly sheltered employment. Quite simply, if the sole proprietor does not work, he or she does not make money. A sole proprietor does not have a salary or sick leave or anyone to perform their duties, if they are absent. Accordingly, the Board finds that the Veteran's endeavor did not constitute sheltered employment. The Veteran's representative also argues that the Veteran only worked 20 hours per week and that the business did not generate income above the poverty level to consider substantially gainful employment. However, such an argument is misplaced. The evidence does not show that when he started the business, the Veteran intended it to be anything other than a success. Indeed, his statements during his private psychiatric examination in 2004 suggest that he was enthusiastic, describing himself as a gigantic handyman. The reason for its ultimate demise is a different question and will be discussed below. In April 2004, the RO granted the Veteran's claims of entitlement to service connection for tinnitus and a hearing loss disability and assigned disability ratings of 10 percent and noncompensable, respectively. Those ratings became effective October 14, 2003. The RO denied the Veteran's claim of entitlement to service connection for PTSD. On July 16, 2004, the RO received the Veteran's notice of disagreement with its April 2004 denial of service connection for PTSD. The Veteran, through his then-representative, stated that he was seeking service connection for his PTSD, either at the 100 percent rate or at the rate of 70 percent plus a TDIU. Such a statement constitutes the Veteran's initial claim for a TDIU. The salient question, then, is when did his service-connected disabilities become so disabling as to preclude him from securing or following a substantially gainful occupation. In April 2005, the Veteran was examined by a board of 2 VA physicians to determine the nature and etiology of any psychiatric disorder found to be present. It was noted that the Veteran had lost his business the previous summer, and he denied any activity or leisure pursuits. He stated that most days, he sat at the breakfast table and stared into space. Following the examination, the relevant diagnoses were alcohol dependency, in remission by the Veteran's report; depression, not otherwise specified; and iatrogenic benzodiazepine dependence. The examiner opined that the Veteran did not meet the criteria for PTSD and that his psychosocial impairment in the past had likely been due to his alcohol dependency and his chronic minimization of the effects of alcohol on his life. The examiner stated that his level of functioning had greatly diminished since the loss of his business and that he was experiencing situational depression. The examiners assigned a GAF of 61. In a July 2005 response to his VA examination, the Veteran stated that the reason for the demise of his employment was his inability to be around people and his inability to handle stress. In a subsequent statement in July 2005 and during a March 2006 hearing before a Veterans Law Judge with respect to the Veteran's claim of service connection for PTSD, the Veteran denied having had a mowing or lawn care business. He also suggested that he had left his long-term job with the General Motors affiliate due to manifestations of his PTSD, specifically his anger and his inability to adjust to different people. Such statements directly conflict with reports he gave to the VA examiners in February 2004 and April 2005 and to the private physician and psychologist who evaluated him in February 2004. As such, they tend to impugn the Veteran's credibility with respect to both of those points. On October 30, 2007, the Veteran was, again, examined by VA to determine the nature and extent of any psychiatric disorder found to be present. Following the examination, the relevant diagnoses were PTSD; dysthymic disorder; and a distant history of alcohol dependence in sustained full remission since 1991. The examiner stated that the Veteran's depression appeared to be related to his PTSD. The examiner assigned a GAF of 48 and noted that she separate GAF scores could not be determined without resort to speculation. By a rating action in November 2007, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 70 percent disability rating, effective October 14, 2003, the date of the receipt of his original claim. In a November 2007 deferred rating action, it was noted that the Veteran met the schedular criteria for a TDIU and that he contended that he could not work due to his disabilities. On VA Form 21-8940, received by the RO in August 2008, the Veteran reported that he had lost money as a result of his attempted self employment after he retired from the General Motors. In August 2009, the RO granted the Veteran's claim of entitlement to a TDIU and assigned an effective date of October 30, 2007. In assigning that effective date, the RO stated that the October 2007 VA examination provided the first indication of PTSD symptoms of such a degree as to preclude the Veteran from securing and maintaining all forms of substantially gainful employment. In December 2009, the Veteran, through his representative, disagreed with that decision. Citing Rice and Comer, the Veteran's representative stated that the effective date for a TDIU should revert to October 14, 2003, the date of the Veteran's original claim for service connection for PTSD. However, it must be emphasized that the Veteran was working after that time in a sole proprietorship. The evidence does suggest that he lost that business in the summer of 2004, primarily due to the manifestations of his PTSD and that he has been unemployable since that time due to PTSD. The summer of 2004 comports with his then-representative's claim for a TDIU received on July 16, 2004. Thus, in view of the holdings in Rice, Comer, and Roberson, the Board finds that the Veteran meets the criteria for an effective date of July 16, 2004 for his TDIU. To that extent, the appeal is granted. ORDER Entitlement to an effective date of July 16, 2004 for entitlement to a TDIU is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs