Citation Nr: 1312844	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  04-39 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an effective date for a total disability rating for compensation based on individual unemployability on an extraschedular basis before April 14, 2003. 


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel













INTRODUCTION

The Veteran served on active duty from November 1967 to October 1969 and from October 1973 to February 1978. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In a decision in January 2010, the Board, in part, granted an earlier effective date for the total disability rating.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Veterans Court).

In March 2012, the Veterans Court issued a memorandum decision that, in part, vacated and remanded the Board's decision on the claim for an earlier effective date.  In October 2012 in a decision, the Board granted an effective date of April 14, 2003, for the schedular total disability rating and remanded the claim for consideration of an extraschedular rating before April 14, 2003


FINDING OF FACT

1.  The Veteran filed his claim for a total disability rating for compensation in September 2003.

2.  The effective date of the award of service connection for posttraumatic stress disorder is February 20, 2003.

3.  It was factually ascertainable that from February 20, 2003, the Veteran was unable to follow a substantially gainful occupation as a result of service-connected disabilities. 



CONCLUSION OF LAW

The criteria for an effective date of February 20, 2003, for a total disability rating for compensation based on individual unemployability on an extraschedular basis have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 4.16(b) (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented in part at 38 C.F.R. § 3.159 (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter dated in January 2005.  Where, as here, the underlying claim has been granted and an initial effective date has been assigned, 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).




Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of a claim. 

The RO has obtained service records and VA records.  Also, the Veteran has been afforded VA examinations.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).   As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 

Effective Date

Under 38 C.F.R. § 3.400(o)(1), the effective date for total disability rating for compensation based on individual unemployability is either the date of receipt of the current claim or date entitlement arose, whichever is later.  The exception allows for the date it was factual ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date. 

A total disability rating for compensation based on individual unemployability 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: Provided that, 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.  38 C.F.R. § 4.16(a). 

It is the policy of VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  



If a Veteran fails to meet the applicable percentage standard enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the Veteran is unemployable due service-connected disability.  38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993).

The Veteran's claim for a total disability rating for compensation based on individual unemployability was received by VA on September 10, 2003.  In the Board's previous decision, the Board assigned a schedular total disability rating from April 14, 2003.  

The Board referred the matter of an extraschedular consideration to the Director of Compensation Service under 38 C.F.R. § 4.16(b). 

In January 2013, the Director of Compensation Service considered the question of an extraschedular rating before April 14, 2003.  After reviewing the evidence, the Director determined that the Veteran was not unemployed and unemployable by reason of his service-connected disabilities to warrant an xtraschedular rating under 38 C.F.R. § 4.16(b) before April 14, 2003.  

The Board may now make an independent determination on this matter.  Anderson v. Shinseki, 22 Vet. App. 423 (2009).  

The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).  

The effective date of the award of service connection for posttraumatic stress disorder is February 20, 2003.  A 50 percent rating for that disability has been assigned from February 20, 2003, and a 70 percent rating from April 14, 2003.  





The Veteran's other service connection disabilities were: residuals of a right ankle fracture and arthritis, each rated 10 percent; tinnitus, rate 10 percent; and malaria, left knee scar, low back pain, a right heminephrectomy, dermatophytosis, a laparotomy scar, and bilateral hearing loss, each rated noncompensable.  The combined rating was 60 percent from February 20, 2003, and a 70 percent from April 14, 2003. 

VA records from January to March 2003 show that on January 15, 2003, the Veteran was evaluated for symptoms of depression, anxiety, insomnia, nightmares, and having flashbacks of Vietnam.  It was noted that he had lost his job in telemarketing and was unemployed, but had 60 hours of college education. 

In February 2003, there was the assessment of questionable PTSD and later in February 2003 PTSD was diagnosed.  In February 2003, a VA discharge summary and treatment records indicated that the Veteran was unemployed.  It was also noted in February 2003 that the Veteran had worked at various telemarketing jobs over the last several years, but he had difficulty maintaining employment due to multiple absences from an inability to sleep at night. 

In February 2003, VA records show that the Veteran complained of suicidal ideation without a plan or intent.  The Global Assessment of Functioning (GAF) scores ranged from 40 to 60.  In February 2003, the GAF score was 40.

The record shows that from February 2003 to May 2003 the Veteran worked about three months as a telemarketer and he worked as a dental technician for five months in 2004.  Although employers reported that no concessions were made because of the Veteran's disabilities and the reason for terminating employment was that the Veteran quit, the Veteran stated that he was unemployed and he complained of difficulty working because of adverse symptomatology caused by PTSD, namely, difficulty maintaining employment due to multiple absences from an inability to sleep at night. 



The Board finds that the Veteran was employed for only eight months out of 24 months, which is not following a substantial gainful occupation, and that while the Veteran quit his jobs, PTSD and the right ankle disability were factors. 

The Board therefore concludes that a reasonable doubt exists as there is an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim of unemployability.  And that the effective date for the total rating on an extraschedular basis is February 20, 2003, the effective date of his award of service connection for PTSD, which was within the one year period before the Veteran's TDIU claim received by VA on September 10, 2003, applying 38 C.F.R. § 3.400(o)(2). 


ORDER

An effective date of February 20, 2003, is granted for total disability rating for compensation based on individual unemployability on an extraschedular basis.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs