Citation Nr: 1313709 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-16 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than December 2, 2011, for a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that denied entitlement to a TDIU. In November 2011, the Board remanded the claim for further development. An August 2012 rating decision granted TDIU and assigned an effective date of December 2, 2011. The appellant appealed the effective date assigned for the TDIU, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to a TDIU on October 27, 2006. 2. The preponderance of the evidence of record reflects that the Veteran was unable to secure and maintain gainful employment as a result of service-connected disabilities as of October 27, 2006. CONCLUSION OF LAW The requirements for an earlier effective date of October 27, 2006, for the grant of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the Veteran's claim for an earlier effective date, the Board notes that such notice is unnecessary in this case because the Veteran is challenging the effective date for grant of a TDIU in the June 2007 rating decision. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003). Thus, the Board finds that under the holding in VAOPGCPREC 8-03, further notice from VA to the Veteran is not required with regard to his claim for an earlier effective date prior to December 2, 2011, for the grant of a TDIU. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them a statement of the case and a supplemental statement of the case, which informed them of the laws and regulations relevant to the Veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board notes that adjudication of a claim for an earlier effective date in this case is based upon evidence already in the claims file; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the Veteran. Consequently, there is no additional development that can be conducted, nor any other records which can be obtained, which would substantiate the Veteran's claim. For example, any additional medical examination would only document the current severity of the Veteran's service-connected disabilities, and not whether he satisfied the criteria for an effective date earlier than December 2, 2011. Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Under VA laws and regulations, 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 laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be 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)(ii), (r). A claim for TDIU is an application for increased compensation within the meaning of the statute because the claimant is attempting to show that his service-connected disability has worsened. Wood v. Derwinski, 1Vet. App., 267, 269 (1991). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. 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. See 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2012). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The evidence reflects that the Veteran filed his claim for entitlement to a TDIU on October 27, 2006. The claim was denied in a June 2007 rating decision. The Veteran filed a notice of disagreement in July 2007, and in November 2007 the RO issued a statement of the case. In June 2008, the Veteran perfected his appeal. Thereafter, based upon results from a December 2, 2011 VA psychiatric examination report, the RO granted a TDIU and assigned December 2, 2011, as the effective date of the award. The Veteran appealed the effective date assigned. At the time the Veteran filed his October 27, 2006 claim for a TDIU, he met the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a) , for consideration of a schedular TDIU. Here, the Veteran's service-connected disabilities are PTSD and pseudofolliculitis barbae, with a combined evaluation for compensation purposes of 70 percent and with the PTSD disability rated as 70 percent since May 26, 2004. The Veteran has specifically alleged that his PTSD disability has rendered him unemployable. The remaining question, then, is whether the Veteran was, in fact, rendered unemployable at any pertinent point prior to December 2, 2011. On his October 27, 2006 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he did not know his employment for the last five years. He had written "Unknown see attached history from SSA." His level of education was given as 1/2 year of college. The printout from the Social Security Administration showed no taxable earnings in 2004, $1,537 in 2005 and no earnings in 2006. An October 2006 VA treatment report reflects that the Veteran was seen with a complaint of exacerbation of his PTSD. The Veteran stated that his PTSD symptoms were preventing him for working. VA treatment records dating from October to November 2006 document the Veteran's complaints of increasing paranoia of people of Middle Eastern descent. The Veteran was admitted to a VA Medical Center in November 2006 due to flashbacks, paranoia and suicidal ideation. He was stabilized and transferred to the VA domiciliary a couple of days later. On VA psychiatric examination in March 2007, the examiner noted that the Veteran was a resident at the domiciliary and was a participant in the treatment program there. The examiner concluded that the Veteran current activities of daily living and formal mental status examination would indicate that he continued to maintain mental functioning necessary for simple routine work. The examiner noted that the Veteran's exposure to individuals of Middle Eastern descent should be limited within the workplace as this might cause an increase in his paranoid symptomatology. A vocational assessment profile performed in November 2007 noted the Veteran's past work experience in warehouse, forklift operation and bus/truck driving. However, it was also stated that the Veteran had an inconsistent work history which has limited his ability to secure employed. The Veteran was aware that his mental health was his primary focus at the present time. He also expressed insight as to how several employment opportunities (i.e., truck driving) may not be conducive to his recovery. He was apprehensive as to how he would function and adjust to the work area. In a subsequent vocational assessment conducted in November 2007, two job leads were identified and offer was made to assist the Veteran with the application process. The Veteran refused, giving several reasons for not pursuing these leads, and indicating that he only wanted to be employed by the Veterans Administration. The Veteran ultimately declined additional vocational services. Following a VA psychiatric examination in December 2011, the examiner concluded that the Veteran's PTSD alone at least as likely as not precluded his ability to obtain or maintain substantially gainful employment. It was noted that the Veteran had a history of depressed mood and ongoing suicidal ideation. Further, he was not hopeful of the future regarding vocational options. The examiner noted that the Veteran has not been employed since 2005 or earlier and has not been in a serious relationship in the last four to five years. The examiner stated that the Veteran had significant concentration and attention deficits and mild to moderate short term memory problems. He could maintain his personal hygiene and could follow simple instructions. The examiner felt that the Veteran had significant anger issues and problems being around other people which would be another significant barrier to employment. Considering the entire record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a TDIU as of the October 27, 2006, which is the date of the Veteran's formal claim for a TDIU. The record includes competent, probative evidence to support a finding that the Veteran's service-connected PTSD rendered him unemployable at the time he filed his October 2006 claim for compensation benefits. Since he filed his claim, the Veteran has reported that his PTSD symptoms had made it difficult to maintain employment. The evidence indicates that the Veteran has not worked for several years and that his paranoia of being around people of Middle Eastern descent was increasing. The March 2007 VA examiner felt that the Veteran could handle simple, routine work, however, the Board notes that at the time, the Veteran was at the VA domiciliary and not in an ordinary work environment. The evidence also shows that the Veteran's attempts at vocational rehabilitation were unsuccessful. The Board finds it significant that, in rendering the opinion that the Veteran was unable to engage in substantially gainful employment due to his PTSD, the December 2011 VA examiner noted that the Veteran has not been employed since 2005 or earlier; the date on which the Veteran was actually rendered unemployable due to psychiatric impairment was not specified. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a TDIU rating from October 27, 2006, which is the date of the receipt of the claim for compensation benefits. ORDER An earlier effective date of October 27, 2006, for the award of a TDIU is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs