Citation Nr: 1312786 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-05 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a TDIU prior to September 21, 2001, under the provisions of 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the RO in San Juan, the Commonwealth of Puerto Rico, which effectuated a February 2007 Board decision that granted the Veteran's claim for TDIU. The RO assigned an effective date of June 15, 2006. The Veteran appealed the issue of entitlement to an earlier effective date, and in February 2012, the Board granted the claim, to the extent that it assigned an effective date of September 21, 2001. The Board remanded the issue of entitlement to extraschedular consideration for the establishment of a TDIU prior to September 21, 2001. FINDINGS OF FACT 1. Prior to September 21, 2001, the Veteran's service-connected disabilities were chronic urinary stones, rated 30 percent, and hypertension, rated 40 percent. His combined disability rating was 60 percent. 2. On August 1, 2012, VA's Compensation & Pension service determined that TDIU pursuant to 38 C.F.R. § 4.16(b) was not warranted prior to September 21, 2001. 3. Factors warranting an extraschedular rating are not shown and the evidence does not show that the Veteran was unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities prior to September 21, 2001. CONCLUSION OF LAW Prior to September 21, 2001, TDIU pursuant to 38 C.F.R. § 4.16(b) was not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Further, the notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In April 2002, the Veteran was provided notice of the evidence necessary to substantiate a claim for a TDIU. In May 2006, he was provided general notice as to how VA determines disability ratings and effective dates and examples of the evidence used to make those determinations. The Veteran was not provided with a compliant notice letter specifically addressing his claim for earlier effective date for the award of a TDIU. However, the request for an earlier effective date is a downstream issue, which was initiated by a notice of disagreement. Once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. § 5104 and 38 U.S.C.A. § 7105 control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). Regarding VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA and non-VA treatment records, and Social Security Administration (SSA) records have been obtained and associated with the claims file. The Veteran also submitted statements on his behalf. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Therefore, the Board finds that the available records and evidence have been obtained in order to make adequate determination as to this issue. In February 2012, the Board remanded this claim. The Board directed that the issue of entitlement to a TDIU be submitted to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b), for the period prior to September 21, 2001. In August 2012, an opinion was obtained from the Compensation and Pension Service that is in compliance with the Board's remand. Under the circumstances, the Board finds that there has been substantial compliance with its February 2012 remand. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board acknowledges that the Veteran's most recent VA examination is nearly six years old. However, there is no reasonable possibility that a VA examination or medical opinion would aid in substantiating the Veteran's claim. Because the Veteran seeks an earlier effective date for the grant of TDIU, a current VA examination would not provide relevant evidence regarding when VA received his claim for TDIU or when he had a combined disability rating at or above the percentage required to establish TDIU. The adequacy of those examinations is likewise immaterial. The Board therefore 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). The Veteran asserts that he is entitled to a TDIU prior to September 21, 2001. In his substantive appeal received in February 2008, he argued that he has not worked since 1998, and that he had diabetes mellitus. In a statement, received in April 2008, the Veteran argued that the correct effective date should be the date that his claim for TDIU was received, on January 7, 2000. On January 7, 2000, the Veteran filed a claim for TDIU. He claimed that he was unable to work due to his non-service connected psychiatric disability. In June 2000, the RO denied the claim. The Veteran appealed, and in February 2007, the Board granted the claim. In March 2007, the RO implemented the Board's decision, and assigned an effective date of June 15, 2006. The Veteran appealed the issue of entitlement to an earlier effective date for TDIU. In February 2012, the Board granted the claim, to the extent that it assigned an effective date of September 21, 2001 under 38 C.F.R. § 4.16(a). Also in February 2012, the Board remanded the issue of entitlement to TDIU on an extraschedular basis prior to September 21, 2001. Generally, the effective date of a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). The effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date shall be the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). Because the Veteran filed his claim on January 7, 2000, the earliest possible effective date is one year prior to the date of receipt of his claim, or January 7, 1999. 38 C.F.R. § 3.400(o)(2) (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). At the time of the Veteran's filing of his claim in January 2000, service connection was in effect for chronic urinary stones, rated 30 percent from July 1998, and hypertension, rated as 40 percent from July 1998. His combined disability rating was 60 percent. 38 C.F.R. § 4.25, Table I (2012). In June 2000, the RO denied the TDIU claim, and the Veteran appealed. On September 21, 2001, while the Veteran's TDIU claim was on appeal, he filed a claim for increased ratings for his service-connected disabilities. In November 2002, he was granted an increase to a 60 percent for his chronic urinary disability, effective September 21, 2001. Therefore, at the time a TDIU was awarded in February 2007, he had a combined rating of 80 percent, effective September 2001. 38 C.F.R. § 4.25, Table I (2012). The Board finds that the Veteran did not meet the percentage requirements of 38 C.F.R. § 4.16(a) for TDIU prior to September 21, 2001. Therefore, the c claim for TDIU prior to September 21, 2001, must be considered under the criteria of 38 C.F.R. § 4.16(b) (2012). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) (2012). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While t38 C.F.R. § 3.321(b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). While Social Security Administration decisions regarding unemployability are relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations. Damrel v. Brown, 6 Vet. App. 242 (1994); Odiorne v. Principi, 3 Vet. App. 456 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996). A September 1998 VA genitourinary report notes that the Veteran had a history of two treatments with electroshock wave lithotripsy and an open ureterolithotomy in 1991. He complained of uretral stricture with difficulty passing urinary calculus. The diagnoses were chronic urinary stone formation, status post-calculus manipulation three times, electroshock wave lithotripsy two times, status post open ureterolithotomy, and right distal ureteral stricture. 38 C.F.R. § 4.1 (2012). The Veteran's chronic urinary stone formation, status post right ureterolithotomy, has been rated under 38 C.F.R. § 4.115b, Diagnostic Codes 7510-7509. hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). This hyphenated diagnostic code may be read to indicate that ureterolithiasis is the service-connected disorder, and it is rated as if the residual condition is hydronephrosis, under Diagnostic Code 7509. Under Diagnostic Code 7509, the maximum rating is 30 percent. Severe conditions may be rated as renal dysfunction, for which a rating of up to 100 percent is provided. 38 C.F.R. § 4.115a (2012). The Veteran's hypertensive heart disease has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, the maximum rating provided for is 60 percent. 38 C.F.R. § 4.104 (2012). The evidence dated during the time period at issue is summarized as follows: Overall, VA reports show that the Veteran received treatment for a wide variety of symptoms and conditions, to include hypertension, kidney symptoms, and psychiatric symptoms. A July 1999 VA hypertension examination report notes that the Veteran had a history of treatment for hypertension with Vasotec, which he voluntarily discontinued in 1989. He was noted to have schizophrenia, which was controlled with the use of four medications. He reported three visits to emergency rooms for hypertension that year. The diagnosis was arterial hypertension, uncontrolled. In April 2000, the Veteran received VA emergency room treatment for pain. He underwent a left percutaneous nephrolithotomy/right double-J placement. The postoperative diagnosis was left nephrolithiasis. An April 2000 VA general medical examination report shows that the Veteran was noted to have left leg phlebitis, high blood pressure, and schizophrenia, and to be receiving VA treatment for kidney calculus, major depressive affective disorder, syncope and collapse palpitations, unspecified visual loss, and uric acid nephrolithiasis. His high blood pressure was under treatment and he had multiple episodes of hypertensive crisis. He also had a 2.5 year history of treatment for schizophrenia, and a history of thrombophlebitis of the left leg. The Veteran complained of lumbar pain with frequent renal colic, insomnia, nightmares, restlessness, anxiousness, episodes of vomiting and diarrhea, abdominal colic, right hand cramps, pollakiuria, and two episodes of collapsing with loss of consciousness and syncopes. He was noted to be taking Xanax, Zyprexa, Monoril, Sertraline, Temazepam, Acetominophen, and Percocet. X-rays revealed bilateral nephrolithiasis. The report contains diagnoses that include uncontrolled arterial hypertension, bilateral nephrolithiasis, status post renal lithiasis and lipectomy on three occasions, and schizophrenia with major depression. The examiner stated that the Veteran was unemployable due to psychiatric and nephrolithiasis conditions. In July 2000, the Veteran was hospitalized by VA for about four days for complaints of right renal colic. He underwent a nephrostogram. The diagnoses were left nephrolithiasis, right ureterolithiasis, and hydronephrosis. Reports from the Social Security Administration (SSA), show that in August 1999, the Veteran's claim for disability benefits was granted. In his application documents, the Veteran reported that he had most recently worked, until May 1998, as a general service director for an X-ray clinic. Prior to that, he had been a general service director at a "clinic laboratory," for about seven years. With regard to his daily activities, he did not want to talk to anyone. He never visited family or friends. He spent a great deal of time in his bedroom and bathroom. He had symptoms that included poor memory and concentration, dizziness, aggressiveness, isolating behavior, and disorientation, He took medicine for his psychiatric symptoms, for which he required supervision of times and doses. He lived with his wife and children, and he always needed help. He did not watch television, or read, and he did not have any recreation activities or hobbies. He had tried to kill himself five times. The SSA determined that the Veteran was disabled as of May 1998, with a primary diagnosis of major depression, and a secondary diagnosis of hypertension. The SSA stated that as it defined the terms, a "severe" impairment is one that significantly limits an individual's physical or mental ability to perform basic work activities, and that an impairment is not "severe" if it is only a slight abnormality, or a combination of slight abnormalities that has not more than a minimal effect on an individual's ability to perform basic work activities. The SSA concluded that the Veteran's major depression was "severe," and that his high blood pressure, and renal lithiasis, were "not severe." The SSA stated, "His high blood pressure and renal lithiasis are under adequate control and have caused him no undue difficulties." The SSA further determined that the Veteran's psychiatric impairment prevented him from carrying out even simple instructions on a sustained basis, responding adequately to co-workers, supervision, and usual work situations, concentrating and making judgments that are commensurate with the functions of unskilled work, comply with production schedules and quotas and tolerating even low levels of stress. The SSA concluded, "His mental impairment is so severe as to preclude him from performing any work activity." The SSA's supporting documentation includes an October 1998 evaluation by M.F.G., M.D., that shows that the Veteran reported that he was unable to work for the past nine months due to "depression (nerves)." The assessments were major depression, hypertension, and nephrolithiasis. Psychiatric examination reports from G.T.G., M.D., dated in May 1999, note that the Veteran's last job was in the maintenance department at an imaging center. He has not worked for a year because of a case of depression and because he had a depressive state which has prevented him from going out. The Veteran complained that he did not feel well and that somebody was following him. His medications included Zoloft, Zyprexa, Buspar, and Ativan. He was also taking Monopril for high blood pressure. He was hospitalized the year before for two weeks due to suicidal ideas and depression. The Veteran never went out alone, and had no friends or visitors. On examination, he was disoriented. His diagnoses included major depression. He was incapable of handling funds or encountering community responsibilities by himself. With regard to his kidney disorder, he expelled two or three stones through his urine every year. Reports from Dr. Gubern's Hospital, dated in November 2000, show that the Veteran was hospitalized for complaints of chest pain. The final diagnoses noted unstable angina, coronary artery disease, schizophrenia, and posttraumatic stress disorder. Reports from Continuum Healthcare Advisors (CHA), dated during the appeal period, show that the Veteran has a history of treatment for psychiatric symptoms since 1990, and that he received ongoing treatment for his psychiatric symptoms. The reports include findings of such symptoms as visual hallucinations, a "cognitive problem," poor impulse control, social isolation, reference ideas, and delirium of pursuit. They show that he was provided with a number of medications for control of his symptoms, to include Xanax, Zyprexa, Sertraline, and Temazepam. In February 2012, the Board remanded the claim and directed that issue of entitlement to a TDIU be submitted to the Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) only, for the period prior to September 21, 2001. In August 2012, an opinion was obtained from the Director, VA Compensation and Pension Service. That opinion notes that the Veteran had not been gainfully employed since 1998. He had an associate's degree, and he last worked for an imaging company as the Administrator for Personnel and Quality. In April 1998, a VA report noted that he had recently been diagnosed with depression "due to economic problems." In October 1998, the Veteran claimed that he had been unable to work in the past nine months "due to depression (nerves)." Dr. G.T.G.'s May 1999 report showed that the Veteran had not worked since 1998 due to depression. The Veteran complained that he was being harassed at work. He would not accept any type of responsibilities or duties assigned to him. He had been admitted for two weeks for treatment of psychiatric symptoms that year. In August 1999, the SSA approved his claim for disability benefits due to major depression (primary diagnosis), and hypertension (secondary diagnosis). The SSA determined that he was disabled as of May 1998, and that his mental condition impaired his "ability to perform even simple work instructions in a sustained manner." The opinion states that although the April 2000 VA examiner indicated that the Veteran was unemployable due to psychiatric and kidney conditions, all other evidence shows that the Veteran's service-connected kidney condition was not severe enough to warrant a rating in excess of 30 percent prior to September 21, 2001, that psychiatric and SSA findings clearly showed that the Veteran was unemployable due to his major depressive disorder, and that his mental impairment was the primary reason for his unemployability. In support of its determination, the opinion cites the SSA's conclusion that it was "so severe as to preclude him from performing any work activity." The opinion concludes that there was no unusual or exceptional disability pattern that would render the application of the regular rating criteria impractical. It further concludes that the evidence does not show that the symptomatology consistently associated with the Veteran's service-connected conditions was not wholly contemplated by the criteria utilized to assign the current and past evaluations. The opinion states that the evidence does not demonstrate that the Veteran's service-connected disabilities prevented him from performing all types of work. The Veteran was noted not to have worked since 1998 due to a nonservice-connected psychiatric condition, and to be in receipt of SSA benefits due to major depression (primary), and hypertension (secondary). The opinion therefore determined that entitlement to TDIU was not established. The Board finds that the evidence of record is insufficient to show that, prior to September 21, 2001, the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The Veteran has an associate's degree, and he had about nine years of experience as a general service director for health care providers. Service connection was in effect for recurrent kidney stones, for which the Veteran is shown to have required both emergency room treatment, and hospitalization with surgery. Service connection was also in effect for hypertension, which is shown to be uncontrolled. However, notwithstanding an April 2000 VA opinion, there is no competent opinion to show that either of the Veteran's service-connected disabilities rendered him unemployable. Rather, the evidence shows that although the Veteran was unemployable during the time period at issue, it was due to nonservice-connected psychiatric symptoms. In 1998, the Veteran was hospitalized for two weeks for psychiatric symptoms. He had reported a history of five suicide attempts. He was shown to have received ongoing treatment for psychiatric symptoms, with evidence of such severe symptoms as visual hallucinations, and paranoid delusions. The SSA determined that he was disabled as of May 1998, with a primary diagnosis of major depression. The SSA's decision shows that it stated that the Veteran's major depression was "severe," and that although he had high blood pressure, and renal lithiasis, those conditions were found to be "not severe." The SSA's decision was based, in part, upon a May 1999 psychiatric examination report which shows that the examiner concluded that the Veteran was incapable of handling funds or encountering community responsibilities by himself. In addition, the August 2012 The Board finds that the evidence of record shows that the Veteran's mental impairment was the primary reason for his unemployability. The Board further finds that there was no unusual or exceptional disability pattern that would render the application of the regular rating criteria impractical, that the evidence does not show that the symptomatology consistently associated with the Veteran's service-connected conditions is not wholly contemplated by the criteria utilized to assign the Veteran's current and past evaluations, and that entitlement to extraschedular ratings was not established. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered that an April 2000 VA examiner attributed the Veteran's inability to work to both his nonservice-connected psychiatric and service-connected nephrolithiasis conditions. However, that opinion is afforded very low probative value, as it is only one sentence long and it is unaccompanied by any rationale or explanation. Neives- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The opinion does not show that it was at least as likely as not that the Veteran was unemployable solely due to service-connected disabilities. Furthermore, the report does not contain any findings sufficient to show that the Veteran was unemployable due to his service-connected kidney disability, it merely noted a history of recurrent bilateral kidney stones, with an episode of nephrolithiasis and bilateral lipectomy in 1982, and it noted that the Veteran complained of a wide variety of symptoms, to include frequent renal colic, and abdominal colic. Accordingly, that opinion is insufficiently probative to warrant a grant of the claim. The Board has also considered that the Compensation and Pension Service opinion appears to have incorrectly stated that the medical evidence "does not reveal any emergency room visits, surgical procedures, or hospitalizations for any of the Veteran's service-connected disabilities," and that its finding that the evidence does not demonstrate that the Veteran's service-connected conditions prevent him from performing all types of work could be read to be at odds with the applicable standard. However, the Board is reviewing the issue de novo and is the ultimate decisionmaker on this issue. Anderson v. Shinseki, 22 Vet. App. 423 (2009). A medical report must be read as a whole. Monzingo v. Shinseki, 26 Vet. App. 97 (2012); Acevedo v. Shinseki, 25 Vet. App. 286 (2012). The Board is convinced that the ultimate conclusions in the Compensation and Pension Service opinion are supported by the evidence, which clearly shows that the Veteran was unemployable due to his nonservice-connected psychiatric symptoms, and not due to his service-connected disabilities. For example, the opinion correctly noted that the SSA determined that the Veteran was disabled with a primary diagnosis of a psychiatric disorder, and that his mental condition impaired his "ability to perform even simple work instructions in a sustained manner." Considering the foregoing, the Board finds that, prior to September 21, 2001, the Veteran was not shown to have met the requirements for a TDIU pursuant to 38 C.F.R. § 4.16(b) because the evidence does not show that it was at least as likely as not that he was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. The Board therefore finds that prior to September 21, 2001, the preponderance of the evidence is against the assignment of TDIU. In reaching this decision, the Board finds that the preponderance of the evidence is against the claim for TDIU prior to September 21, 2001, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU prior to September 21, 2001, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs