Citation Nr: 1313706	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  06-28 137A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an effective date earlier than July 2, 2001, for the grant of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from March 1962 to May 1966.  The Veteran died on April [redacted], 2010.  The appellant is the Veteran's surviving widow.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  In that decision, the RO awarded entitlement to a TDIU and assigned an effective date of July 2, 2001.  The Veteran perfected a timely appeal with regard to the effective date.  In May 2011, the RO recognized the appellant as a substituting party with regard to this claim.  See Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the United States Court of Appeals for Veterans Claims (Court), substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal).


FINDING OF FACT

Prior to July 2, 2001, the Veteran did not meet the schedular criteria for TDIU and there is no evidence of record demonstrating that the Veteran was unable to obtain or maintain substantially gainful employment.


CONCLUSION OF LAW

The criteria establishing an effective date prior to July 2, 2001, for the award of entitlement to TDIU, for accrued benefits purposes only, have not been met.  38 C.F.R. §§ 1155, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.400, 3.1000 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this 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.  Id. at 486.  VCAA 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The claim arises from an appeal of the initial evaluation following the initial award of entitlement to TDIU.  Courts have held that once service connection, or in this case an award of TDIU, is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the appellant in the development of the claim.  This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

In this case, given that the appellant's claim is an accrued benefits claim, VA, by regulation, is to take the claim as it stood at the time of the Veteran's death, and may only add service treatment records or other documents that were constructively in VA's possession at the time of death to the file when deciding an accrued benefits case.  38 C.F.R. § 3.1000(d)(4).  In this case, the appellant and her representative have not alleged that there is any relevant evidence that was in VA's constructive possession at the time of the Veteran's death.  Therefore, the Board finds that the record is as complete and as ready for adjudication of the accrued benefits claim as the claims file can be.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Merits of the Claim

Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ."  38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. 3.1000(a) (2012).  An "[a]pplication for accrued benefits must be filed within one year after the date of death."  38 C.F.R. § 3.1000(c) (2012).  By statute, the appellant takes the Veteran's claims as they stood on the date of his death.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). 

Generally, only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits.  This includes service department and VA medical records, which are considered to be constructively in the claims file at the date of death, even though they may not physically be in the file until after that date.  38 C.F.R. § 3.1000(d)(4).  Thus, after the Veteran's death the appellant cannot furnish, and VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits.

In the case of claims for an increased disability rating, the effective date assigned is generally the date of receipt of the claim, or the date the entitlement arose, whichever is later.  However, if the claim is filed within one year of the date that evidence shows an increase in the disability has occurred, the earliest date as of which an increase is factually ascertainable will be used.  38 C.F.R. §§ 3.400(o)(1) and (2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). 

Applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that may be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the earliest date as of which, within the one year prior to the filing of a formal claim for TDIU, the increase in disability was ascertainable.  Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).

As a threshold matter, when the service-connected disability rating is less than 100 percent, assignment of a TDIU requires inability 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 is ratable at 60 percent or more, and that, if there are two or more disabilities, at least one is ratable at 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that July 2, 2001, is the appropriate date for the grant of entitlement to TDIU. 

In this regard, the evidence of record clearly indicates that the Veteran filed a formal claim for entitlement to TDIU on August 19, 2003.  It is clear from the November 2003 rating decision, that the Veteran was granted entitlement to TDIU effective July 2, 2001, as this was the date that he met the scheduler requirements for TDIU (the Veteran's claim of entitlement to service connection for a seizure disorder was increased to 80 percent effective, July 2, 2001).  

The Board notes that, prior to this date, the Veteran was service connected for a scar on the back at a noncompensable rating; Osgood-Schlatter's disease at a noncompensable rating; chronic sinusitis with rhinitis at a noncompensable rating; right eye residuals of toxoplasmosis, choriortinitis and scotoma, at a 30 percent rating; and a seizure disorder at a 40 percent rating.  The Veteran's overall combined evaluation for compensation was 60 percent.  As such, prior to July 2, 2001, although the Veteran had a single disability rated at 40 percent, the combined rating as no more than 60 percent.  

Moreover, the evidence of record does not otherwise show that he was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities during that time period.  

Effective July 2, 2001, however, the Veteran's service connected seizure disorder was increased to 80 percent and as a result his combined rating rose to 90 percent.  Therefore, the Veteran first met the regulatory requirements for TDIU on July 2, 2001, which is also the effective date currently in place.

The Board acknowledges the date of claim was August 14, 2003, and under the law, the earliest possible effective date for the Veteran's claim would be August 14, 2002, one year prior to the receipt of the TDIU claim.  As previously noted, the effective date will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  In this case, however, the Veteran was assigned the effective date of July 2, 2001, which earlier than the date of claim.  The Board finds that the appropriate effective date issued by the RO for entitlement to TDIU should have been the date of claim.

Furthermore, according to the Veteran's September 2003 application for TDIU, he stated he was not employed since August 1972 and that "[m]y work in the [r]estaurant business was mostly off and on... Therefore, I could work if I was able."  Although the Veteran reported his service connected disabilities have precluded him from being employed, there is no medical evidence to support this contention.  The Court has held that the sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Accordingly, any date prior to July 2, 2001, is precluded from assignment by law. As the preponderance of the evidence and the law are both against the claim for an earlier effective date, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53 (1990).


ORDER

An effective date earlier than July 2, 2001, for the grant of a total disability rating based on individual unemployability for accrued benefits purposes is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs