Citation Nr: 1312495 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-20 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for lumbar spine degenerative joint and disc disease. 2. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right ankle degenerative joint disease. 3. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left ankle degenerative joint disease. 4. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right knee degenerative joint disease. 5. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left knee degenerative joint disease. 6. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right shoulder degenerative joint disease. 7. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right hand and thumb degenerative joint disease. 8. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left hand and thumb degenerative joint disease. 9. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right wrist degenerative joint disease. 10. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left wrist degenerative joint disease. 11. Entitlement to an effective date earlier than April 22, 2008, for an award of a total rating for individual unemployability due to service-connected disabilities (TDIU). (The issue of eligibility for Dependents' Educational Assistance (DEA) under the provisions of Chapter 35, Title 38, United States Code is addressed in a separate decision.) ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active service from May 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an October 2007 rating decision of the Appeals Management Center (AMC) in Washington, D.C., and a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2008, the Veteran rescinded his power of attorney with his prior representative. The service organization appeared at an RO hearing (a transcript of which is on file) and has offered written presentations on these matters, so there is no prejudice in proceeding without further clarification. Although the Veteran requested a hearing before the Board when he perfected a timely appeal in June 2009, he failed to report for this hearing when it was scheduled in November 2010. In November 2010, VA was informed by the Veteran's former representative that he was ill that day and wished to reschedule the hearing. The Veteran, however, failed to report for his hearing when it was rescheduled in March 2011. FINDINGS OF FACT 1. Service connection for right shoulder and elbow disorder; arthritis, both ankles, wrists, hands, knees, and spine; and chronic headaches was denied in an April 1989 rating decision that was not appealed. New and material evidence was not received by VA within one year of the April 1989 rating decision. 2. The record contains no statement or communication from the Veteran, after the April 26, 1989 rating decision and prior to July 15, 1991, that constitutes an earlier, pending claim for service connection for lumbar spine degenerative joint and disc disease, degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists. 3. The issue of entitlement to TDIU was part of the Veteran's service connection claim received on July 15, 1991. 4. As a result of rating actions promulgated during the course of the appeal, the Veteran met the schedular criteria for a TDIU on July 15, 1991. 5. The competent medical evidence for and against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities since July 15, 1991, is in equipoise. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 15, 1991, for the grants of service connection for lumbar spine degenerative joint and disc disease, degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists are not met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for an effective date of July 15, 1991, but no earlier, for the award of a TDIU, have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. In this case, the Board notes that the issues on appeal arise from notices of disagreement as to the effective dates assigned to the Veteran's lumbar spine degenerative joint and disc disease and degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists and TDIU; and as such, represent "downstream" issues as referenced in VAOPGCPREC 8-2003 (December 22, 2003), summary published at 69 Fed. Reg. 25,180 (May 5, 2004), a precedent opinion of VA's General Counsel that is binding on the Board (see 38 U.S.C.A. 7104(c); 38 C.F.R. § 14.507). The opinion states that if, in response to notice of its decision on a claim for which VA has already given the 38 U.S.C.A. § 5103(a) notice, VA receives a notice of disagreement that raises a new issue, 38 U.S.C.A. § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly-raised issue. With regard to the instant case, the Board finds that adequate 38 U.S.C.A. § 5103(a) notice was provided as to the original claim for service connection in December 2006, and as such, the rating assignment issue on appeal falls within the exception for the applicability of 38 U.S.C.A. § 5103(a). Regarding effective date claims, these issues are determined based on findings of the date of claim and date of entitlement, which are based on evidence already of record. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Earlier Effective Date Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a) (2012). A report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157(a) (2012). There must, however, first be a prior allowance or disallowance of a claim. 38 C.F.R. § 3.157(b). For purposes of effective date rules, the issue of entitlement to TDIU may be considered as part of a claim for underlying benefits (i.e., a service connection claim) or may be considered part of an increased compensation claim (i.e., in conjunction with an increased evaluation claim or as a freestanding claim to obtain an increased evaluation based on unemployability). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (stating that a TDIU request "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"); Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (noting that an award of TDIU may not amount to award of increased compensation where TDIU is awarded as part of initial award of disability compensation benefits). Effective Date for Service Connection Claims The basic facts in this case are not in dispute. The Veteran's original application for compensation or pension was received in April 1984; the Veteran specifically indicated that his arm disorder began while in service, and his back disorder began in 1982 after service. Service connection for bursitis of the right shoulder and nonservice-connected (NSC) pension was denied in an August 1984 rating decision that was not appealed. A second application for compensation or pension was received in January 1989; the Veteran specifically indicated a right shoulder and elbow disorder as well as ankle, wrists, hand, knees, and spine arthritis and chronic headaches that began while in service. Service connection for right shoulder and elbow disorder; arthritis, both ankles, wrists, hands, knees, and spine; and chronic headaches was denied in an April 1989 rating decision that was not appealed. A third application for compensation or pension was received in March 1990; the Veteran specifically indicated a back disorder and leg disorder which began in 1982 as well as severe arthritis. The application contains a note which states, "Items 26, 27, and 29 need NOT be completed unless you are now claiming compensation for a disability incurred in service." The Veteran specifically crossed through Items 25, 27, and 28 as not applicable. On the accompanying VA Form 21-4138, Statement in Support of Claim, the Veteran indicated that he was making application for new law pension benefits. NSC pension benefits were denied in an August 1990 rating decision that was appealed. On the VA Form 1-9, Appeal to the Board of Veterans Appeals, received by VA on July 15, 1991, the Veteran indicated that he wished to appeal the ruling of his application for disability to the hands, arms, neck, and back and noted that he was treated for injuries of these area while on active duty. By rating action of August 1997, NSC pension benefits were granted effective in March 1990. Arthritis and ataxia with an organic brain disorder were the principal disorders establishing entitlement. The effective date was subsequently moved to July 1989. By an October 2007 rating decision, service connection for lumbar spine degenerative joint and disc disease and degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists was granted and effective dates of June 4, 1998 were assigned. The Veteran appealed the decision with respect to the effective dates, and in a March 2009 Statement of the Case, effectives date of July 15, 1991, were assigned for service connection for lumbar spine degenerative joint and disc disease and degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists. As noted above, the Veteran did not appeal the April 1989 rating decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C.A. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988). In addition, no new and material evidence was received within a year of the April 1989 rating decision. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, the April 1989 rating decision is final. There is no document in the claims file that can be construed as a pending claim for service connection after the final April 1989 denial and before July 15, 1991. The Board notes that the March 1990 application is clearly for pension and not for compensation. In addition, there is no indication that the Veteran stated to the VA examiner during the July 1990 VA examination conducted in connection with the NSC pension claim, that his multiple joint pain was in any way related to his active duty service. Similarly, VA treatment records dated prior to July 15, 1991 show complaints of joint pain; back, shoulder and hand problems but no reports linking such problems to his active duty service. It wasn't again until July 15, 1991 that VA received a VA Form 1-9 which included a statement that his hands, arms, neck, and back were injured and treated in service. It is also noted that the pension grant was based in large part on the ataxia and organic brain disorder for which service connection is not in effect. Thus, the Board finds that, as a matter of law, there simply is no legal basis for assignment of an effective date earlier than July 15, 1991, for service connection for lumbar spine degenerative joint and disc disease and degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists. Effective Date for TDIU In the present case, the effective date of April 22, 2008, was assigned because the RO determined that it was the date that the Veteran filed his formal application for a TDIU. A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. If there is only one such disability, this disability shall be ratable at 60 percent or more and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For purposes of a total rating based on individual unemployability, disabilities of one or both upper extremities or of one or both lower extremities as well as disabilities resulting from common etiology will be considered one disability. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. 38 C.F.R. § 4.16(a) (2012). If the above percentages are not met, the Veteran's claim may still be referred to the Director, Compensation and Pension Service, for extraschedular consideration, when the evidence of record shows that Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b) (2012). As a result of actions taken during the appeal period, the Veteran met the scheduler criteria for a TDIU effective July 15, 1991. In this case the service connection claims remained pending from July 15, 1991 until service connection was granted in the October 2007 rating decision. As such, there was no opportunity during this time for the Veteran to request increased evaluations. As noted above, the issue of entitlement to TDIU may be considered as part of a claim for service connection claim. See Rice, 22 Vet. App. at 453-54; Dalton, 21 Vet. App. at 32-34. At the time that he filed his claims for service-connections in July 1991, the Veteran also had a claim for NSC pension benefits on appeal. In connection with the pension claim, on July 19, 1991, the Veteran submitted a letter from the Veteran's treating physician who stated in pertinent part, [The Veteran] has been a patient of mine for some years. He has been more or less disabled since 1982 with an obscure condition manifested principally by multiple arthritic discomforts, which have not improved with therapy. ... Especially affected by the arthritis are the neck, shoulders, back, and ankles. ... [The Veteran] relates in a convincing fashion that his symptoms began in 1971 while he was in the military service. During his service years, he was treated on a number of occasions for this problem ... In this case, VA received the Veteran's treating physician's letter within days of filing an informal claim for service connection for hands, arms, neck, and back disabilities. The treating physician essentially acknowledged in his letter that the Veteran is disabled due to his arthritis pain in his neck, shoulders, back, and ankles. Service connection was ultimately established effective from July 15, 1991 for lumbar spine degenerative joint and disc disease and degenerative joint disease of right and left ankles, right and left knees, right shoulder, right and left hands and thumbs, and right and left wrists. Thus, the Board finds in this case that the issue of entitlement to TDIU was part of his service connection claim. As such, the effective date for the grant of a TDIU in this case is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The Board has determined that the date of the service connection claims is July 15, 1991, and thus, the date of the claim for a TDIU is also July 15, 1991. Determination of the date of claim in this case is not the end of the inquiry. The Board must determine when the entitlement to a TDIU arose. At his May 2001 Board hearing, the Veteran testified that he became too disabled to work in 1983 due to his leg, knee, upper and lower back, shoulders, arm and hand. In addition to the July 1991 statement from the Veteran's treating physician, the record indicates that the Veteran filed for and was approved for SSA disability benefits sometime in March 1990. It appears from the SSA decision, however, that the disability which precluded substantial gainful activity was an organic mental disorder and his service-connected disabilities. This was also part of the pension grant as noted above. Private medical records were received by VA in May 1994. A December 1993 letter from a private physician which states, "[The Veteran] returns with a MRI of the cervical spine showing small central disc protrusion of the C3-4 and C4-5, with mild canal stenosis. ..." A March 1994 letter from the private physician which states in pertinent part, The above noted patient had a MRI on 12/06/93, revealing a small central disc protrusion of the C3-4 and C4-5, with mid canal stenosis, which is consistent with his symptoms. It is my opinion that this condition is due to the accident. From an orthopedic standpoint his condition is permanent. Although the service connection for cervical spondylosis has been established, it was not until July 2009, and the Veteran did not appeal the effective date of this disability. A doctor's certification form dated in May 1995 indicates that the Veteran was permanently disabled and that he was "severely limited in his/her ability to walk due to an arthritis, neurological, or orthopedic condition." The Veteran underwent VA examination in May 2007 at which time the examiner opined that the Veteran's severely degenerative hip along with his right ankle were his major limiting factors. The examiner noted that his other joints, hands, right shoulder, and knees were basically asymptomatic. The Veteran underwent VA examination in April 2008 at which time the VA examiner noted that the Veteran had not been able to work since the 1980s because of his back and joints. The examiner specifically mentions the Veteran's lumbar spine, right ankle, and right wrist. As noted above, the effective date of an award "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. § 5110(a). With respect to the phrase "the date entitlement arose," the regulation has not defined that term. However, the date evidence is submitted or received is irrelevant when considering the effective date of an award. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When an original claim for benefits is pending, as the Board found here, the date on which the evidence is submitted is irrelevant even if it was submitted over twenty years after the time period in question. Id. The phrase "date entitlement arose", as used in VA regulations, does not appear in the statute. Conversely, the phrase "...pursuant to any Act or administrative issue," appears in the statute, but does not appear in the regulation. The Board infers from these facts that the phrase "date entitlement arose" as used in 38 C.F.R. § 3.400 must refer to § 5110 (g) "...pursuant to any Act or administrative issue,". Similarly, 38 C.F.R. § 3.114(a) indicates that the effective date of an award pursuant to a liberalizing law change are effective on the date of the act or administrative issue, with retroactive payments available up to one year prior to the liberalizing law or VA issue if the claimant meet all eligibility criteria for the benefit on the effective date of the liberalizing change. There is no mention of the date on which evidence is submitted. Thus, the Board need not consider the date that a physician offered a favorable opinion to be the date that entitlement arose. In this case, the "date entitlement arose" refers to the date of enactment of current 38 U.S.C.A. § 1110, which authorizes compensation for any service-connected disability. Two exceptions exist for an effective date prior to the date of claim. First, the date of service connection may be assigned as of the date of separation from service, if the date the claim was received was within one year of separation. Second, an effective date for service connection prior to the date of receipt of a claim may be assigned where compensation is awarded or increased pursuant to a liberalizing law or liberalizing VA issue. 38 C.F.R. § 3.114(a)(3) (2012). Total disability rating was added to the rating schedule in 1933. Regulation & Procedure (R&PR) 1166) (Feb. 27, 1934). In this case, neither exception is applicable. The Veteran was discharged from service in June 1973, and he filed his original claim for service connection more than 10 years after his discharge from service. TDIU has been in the Rating Schedule since 1933. The objective evidence as to the severity of the Veteran's service-connected conditions shows that the Veteran's lumbar spine, right ankle, and right wrist conditions more likely than not have prevented him from being employed since the 1980s. In this case, the evidence is at in equipoise that the Veteran's service-connected disabilities made him unemployable since he filed his claim on July 15, 1991. The Board concludes, therefore, that a total disability rating for compensation purposes based on individual unemployability is warranted as of July 15, 1991. It is important for the Veteran to understand that he was not service connected for any disability prior to this date (July 15, 1991); therefore, there is no basis to award the Veteran a higher evaluation prior to this time. ORDER Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for lumbar spine degenerative joint and disc disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right ankle degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left ankle degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right knee degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left knee degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right shoulder degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right hand and thumb degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left hand and thumb degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for right wrist degenerative joint disease is denied. Entitlement to an effective date earlier than July 15, 1991 for the grant of service connection for left wrist degenerative joint disease is denied. Entitlement to an effective date of July 15, 1991, for an award of a total rating for individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs