Citation Nr: 1317113	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  12-16 137	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to an effective date earlier than June 30, 2006 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

2.  Whether new and material evidence has been received to reopen entitlement to service connection for chronic bronchitis.

3.  Whether new and material evidence has been received to reopen entitlement to service connection for a right ankle disability.

4.  Whether new and material evidence has been received to reopen entitlement to service connection for a right shin disability.

5.  Entitlement to an increased rating for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The veteran served on active duty from October 1996 to February 1998.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California and in June 2010 by the VA RO in Boston, Massachusetts.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of whether new and material evidence has been received to reopen entitlement to service connection for chronic bronchitis, right ankle disability, and right shin disability and entitlement to an increased rating for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The evidence of record shows that it is factually ascertainable that the Veteran was unemployable due to her service-connected back disability, PTSD and depressive disorder as of June 8, 2005, which is the effective date of the grant of service connection for PTSD and depressive disorder.

2.  The preponderance of the evidence of record does not show unemployability solely due to the Veteran's service-connected disabilities prior to June 8, 2005.


CONCLUSION OF LAW

The criteria for an effective date of June 8, 2005 for the award of a TDIU have been met.  38 U.S.C.A. §§ 5110, 5101 (West 2002); 38 C.F.R. §§ 3.151, 3.156, 3.400, 4.16 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In this case, the Veteran is challenging the effective date assigned following the June 2010 rating decision that granted entitlement to a TDIU.  Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement.  If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) 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); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012).  

In this regard, the May 2012 statement of the case (SOC), informed the Veteran of the information and evidence needed to substantiate her earlier effective date claim.  The SOC also informed the Veteran of the regulations governing effective dates.  Furthermore, all the pertinent evidence is already of record.  In light of the above, further development in this regard would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).  Thus, VA has satisfied its obligation to notify.

Additionally, the Veteran has not alleged and the record does not show that there is outstanding evidence relevant to the issue of entitlement to an earlier effective date for the award of entitlement to a TDIU.  All of the pertinent information is of record.  As such, the Board finds VA's duty to assist in this case has been met.  Based on the foregoing, there is no prejudice to the Veteran in proceeding to consider her claim for this benefit.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Earlier Effective Date

The Veteran contends that she is entitled to an effective date earlier than June 30, 2006 for the grant of entitlement to a TDIU.  The Board notes that VA laws and regulations with respect to earlier effective dates do not have a specific subsection with respect to the award of TDIU.  Generally, for purposes of assigning an effective date, the award of TDIU is considered as equivalent to an award of increased disability compensation.  In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); Dalton, 21 Vet. App. at 31-32;  Harper, 10 Vet. App. at 126-27; 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). 

An earlier effective for the grant of TDIU may be treated as a service connection claim for determining the effective date if it is on direct appeal as part of an initial disability.  See Rice v. Shinseki, 22 Vet. App. 449, 456 (2009) (explaining that Hurd v. West, 13 Vet. App. 449 (2000) does not stand for the proposition that an assertion of entitlement to TDIU is always a claim for increased compensation, and because the Court found that TDIU in this case was on direct appeal as part of the initial disability rating it was error for the Board to apply 5110(b)(2) and 3.400(o)(1)).  Furthermore, there is a possibility that the effective date could be as early as the date of claim for an underlying increased rating.  Rice, 22 Vet. App. at 456.

A TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19 (2011); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Consideration of TDIU is appropriate 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. 38 C.F.R. §§ 3.340, 4.16(a).  Where the percentage requirement is not met, but the Veteran is unemployable due to service-connected disability, the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration.  38 C.F.R. § 4.16(b).

As an initial matter, the Board notes that the Veteran and her representative indicated in the March 2013 Board hearing that the Veteran should have been assisted in a more productive manner throughout the Veteran's various service connection claims for posttraumatic stress disorder (PTSD) and that VA did not treat her PTSD claim in an "adequate" manner from the original filing of the claim.  It appears that the Veteran is arguing that if she was granted PTSD with an earlier effective date to include back to discharge from service, then the effective date for the grant of TDIU may go back to the earlier effective date for the grant of service connection for PTSD.  The Board has carefully reviewed the statements by the Veteran and her representative; however, even with a liberal reading of the statements and testimony of the Veteran, there is no indication that she disagreed with the July 1998 rating decision or any other rating decision due to the RO applying incorrect facts or incorrect legal standard to that decision or decisions.  See Fugo v. Brown, 6 Vet. App. 40, 44 (1993); Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994) (where there are multiple decisions, a failure to specify the dates of the RO (or Board) decision being collaterally attacked, renders the pleading of CUE insufficient); Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (The Board has an obligation to read pro se filings liberally.  This obligation applies both to proceedings appealing an RO decision and to proceedings alleging CUE in a final decision of the Board).  Generally, CUE must be pled with some degree of specificity as to the alleged error.  Fugo v. Brown, 6 Vet. App. at 44.  Accordingly, the Veteran has not raised the issue of entitlement to an earlier effective date for the grant of service connection for PTSD due to CUE in the July 1998 rating decision or any subsequent rating decision.  

The Board also notes that it has remanded the Veteran's increased rating claim for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot for issuance of a statement of the case.  The Board finds that this issue is not intertwined with the Veteran's earlier effective date for the grant of TDIU as the Veteran has not indicated, and the evidence does not show, at any time that her service-connected left ankle and left foot disability has substantially contributed to her inability to obtain or sustain marginal employment.  Thus, the Board finds that the increased rating claim for left ankle sprain with left tarsal tunnel syndrome is not inextricably intertwined with the Veteran's claim for an earlier effective date for the grant of TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ( two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).

Historically, the Board finds that the first communication from the Veteran, which can be reasonably interpreted as a claim of entitlement to TDIU, is a documented statement in November 2004 by the Veteran via telephone as part of an increased rating claim for her service-connected back disability that she cannot keep a job due to her inability to sit or stand.  A rating decision in January 2006 denied the Veteran's claim for TDIU.  The Veteran submitted a request for unemployability due to her service-connected back and PTSD in June 2006.  She submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, with the June 2006 request.  There is no indication in this communication that she disagreed with or wanted to appeal the denial of TDIU in the January 2006 decision.  A rating decision in June 2010 granted entitlement to a TDIU, effective June 30, 2006, the date the Veteran submitted the application for TDIU.  

The Veteran contends that in January 2006 the RO notified her of their decision to increase the Veteran's back condition to 40 percent and granted entitlement to service connected for posttraumatic stress disorder with an effective date of June 8, 2005.  Her overall combined rating was 70 percent as of June 8, 2005 and therefore, she met the percentage requirement for a TDIU at that time.  Furthermore, she argued that the January 2006 rating decision denied her claim for TDIU because she did not complete and return VA Form 21-8940; however, she submitted that form in June 2006, within one year of the January 2006 rating decision.  

Essentially, the Veteran is arguing that she submitted new and material evidence within the one-year appeal period of the RO denial of her TDIU claim.  Pursuant to 38 C.F.R. § 3.156(b), "[n]ew and material evidence received prior to the expiration of the" period for appealing a decision "will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period."  This regulation requires VA to review any evidence submitted during the appeal period and make a determination as to whether it constitutes new and material evidence relating to an existing claim.  See Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011).  The RO received a completed VA Form 21-8940 in June 2006, which was within one year of the January 2006 rating decision that denied entitlement to a TDIU.  Furthermore, the information in VA Form 21-8940 shows that the Veteran last worked full time in November 2002 and the positions she worked after that time had marginal employment as her income was did not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.  The Board finds that this evidence is new in that it was not considered in the January 2006 rating decision and it is material as it raises a reasonable possibility of substantiating the Veteran's claim.  In fact, this information was used in granting the Veteran's claim of TDIU in the June 2010 rating decision.  Accordingly, the January 2006 rating decision is not final with respect to the Veteran's claim for TDIU.  

Furthermore, it is factually ascertainable that the Veteran met the requirements for TDIU on June 8, 2005, the date the Veteran was granted service connection for PTSD.  In this regard, a May 2003 orthopedic examination reveled that the examiner determined that due to her back disability, prolonged standing, sitting and walking would increase her symptoms and she should be limited to sitting and standing for no more than one to two hours with rest periods to enable her to get up and move about, changing her position.  He determined that she should be restricted to lifting occasionally no more than 15 to 20 pounds and on a repetitive basis no more than 10 to 15 pounds.  A September 2005 VA mental health examination reveals that she has an associate degree in dental assisting and she has not worked since December 2004.  At the time of the examination she was homemaker, but she explained that it took her a long time to complete chores due to chronic pain and muscle spasms.  The examination revealed that she had difficulty sitting upright and often grimaced in pain.  She limped and moved slowly.  Her symptoms of PTSD include intrusive recollections, episodic distressing dreams, emotional and physiological reactivity to stimuli that resemble efforts to avoid certain activities, social detachment, restricted range of affect, sleep disturbance, concentration trouble, hypervigilence and strong startle reaction.  The Veteran's depressive disorder is manifested by feeling blue, mild loss of interest, concentration trouble, loss of energy, psychomotor restlessness, sleep disturbance and some appetite disturbance.  The examiner determined that her Global Assessment of Functioning (GAF) Scale ranged from 50 to 55 indicating moderate to serious symptoms that result in serious or moderate difficulty in social or occupational functioning.  The symptoms discussed in the September 2005 VA examination were similar to symptoms documented in the VA treatment records around June 8, 2005.  Based on the foregoing, the overall evidence of record suggests the Veteran would have difficulty with any occupation due to her service-connected back disability and PTSD with depressive disorder as of June 8, 2005.  Thus, the Board concludes that it is factually ascertainable that the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disability as of June 8, 2005, the date the Veteran was granted service connection for PTSD.  

The Board has also considered whether the evidence of record shows that the Veteran is entitled to an effective date earlier than June 8, 2005.  As indicated above, if the evidence shows that the Veteran was unable to obtain or secure substantially gainful employment due to his service connected disabilities within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable."  Therefore, the Board will determine whether the Veteran is entitled to a TDIU as of the date she first filed her claim for TDIU on December 29, 2004 or within one year prior to that date.  

The record shows that the Veteran met the basic criteria for consideration for entitlement to TDIU on a schedular basis on December 29, 2004, the date of claim as the Veteran was in receipt of a 60 percent disability rating for on disability as the service-connected disabilities were a result of a single accident during service.  See 38 C.F.R. § 4.16(a).  Although the Veteran did not meet the schedular criteria prior to December 29, 2004, it does not end the determination on whether the Veteran is entitled to an earlier effective date for TDIU under 38 C.F.R. 4.16(a).  The Court has held that an award of TDIU pursuant to 38 C.F.R. § 4.16(a) requires both (1) schedular requirements and (2) an inability to secure or follow a substantially gainful occupation.  See Dalton, 21 Vet. App. at 33.  For purposes of section 5110(b)(2), both criteria of a TDIU rating under section 4.16(a) are types of disabilities, and, therefore, provided that both criteria to support an award of TDIU are present during the applicable period, it is irrelevant which of the two criteria first became factually ascertainable.  Id.  If it can be ascertained that either or both criteria manifested during the one year prior to receipt of the claim, then the "increase in disability" requirement of 38 U.S.C. § 5110(b)(2) is satisfied.  Id.  Thus, the Board must also determine if it is factually ascertainable that the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disability on December 29, 2004 and between December 29, 2003 and December 29, 2004.

After a careful review of the record, the Board finds that the overall evidence does not show that the Veteran was unemployable due to her service-connected disabilities at any time prior to June 8, 2005.  Prior to June 8, 2005, the Veteran was service-connected for a back disability, left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot, chronic left hip strain and chronic right hip strain.  The evidence of record reveals her service-connected physical disabilities make it difficult for her to work in an occupation that requires physical labor.  See VA examination dated in May 2003.  A March 2005 VA treatment record indicates that the Veteran's pelvis and lumbar symptoms limits her ability to work.  Although an examiner determined in May 2003 that the Veteran should be limited to sitting and standing for no more than one to two hours with rest periods to enable her to get up and move about and change positions, this does not indicate that she could not obtain and maintain employment in a sedentary job or in an office setting.  The Veteran would be able to move around and change positions in most sedentary job settings.  The evidence shows that the Veteran has an associate degree as a dental assistant.  She has worked as a claims counselor, the front office of a dental office and in a call center.  Thus, the Veteran has the capability of working in an office setting based on her education and prior work experience.  Accordingly, the overall evidence of record shows that the Veteran's service-connected disabilities prior to June 8, 2005 did not limit her ability to obtain and maintain employment in an office setting or other sedentary position.  

As evidence of the Veteran's unemployability due to service-connected disabilities under VA standards is not present until the Veteran was granted service-connection for PTSD, effective June 8, 2005, the effective date of the grant of TDIU is June 8, 2005.  The preponderance of the evidence does not support the assignment of an effective date earlier than June 8, 2005, for the Veteran's TDIU rating.  Therefore, entitlement to an effective date of June 8, 2005 is granted.  .


ORDER

Entitlement to an effective date of June 8, 2005 for the grant of a TDIU is granted.


REMAND

A rating decision dated in January 2003 denied the Veteran's request to reopen entitlement to service connection for chronic bronchitis, a right ankle disorder, right shin splint and PTSD and entitlement to an increased rating for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot (originally rated as paresthesia of the left shin splint).  The Veteran submitted a statement in April 2003 asserting that she disagreed with the denial she received in January 2003 and it is her intention to appeal that decision.  This is a clear expression of disagreement with the January 2003 rating decision and a desire for appellate review.  See 38 C.F.R. § 20.201 (2012).  The United States Court of Appeals for Veterans Claims (Court) has made it clear that the proper course of action when a timely notice of disagreement has been filed is to remand the matter to the RO.  Manlincon v. West, 12 Vet. App. 238 (1999).  Appropriate action, including issuance of a statement of the case, is now necessary with regard to these issues.  38 C.F.R. § 19.26 (2012).  The Veteran will then have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to the issues of his request to reopen entitlement to service connection for chronic bronchitis, a right ankle disorder and right shin splint and entitlement to an increased rating for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot.  With respect to the Veteran's service connection claim for PTSD, a rating decision dated in January 2006 granted the claim.  As this was a full grant of the benefits sought by the Veteran, the issue of entitlement to service connection for PTSD is no longer on appeal and therefore issuance of a statement of the case regarding that issue is not appropriate.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Furnish to the Veteran and her representative with a statement of the case regarding the issues of her request to reopen claims of entitlement to service connection for chronic bronchitis, a right ankle disorder and right shin splint disorder and entitlement to an increased rating for left ankle sprain with left tarsal tunnel syndrome and paresthesia of the left foot, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on those issues.  The Veteran and her representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status a timely appeal must be perfected.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs