Citation Nr: 1320314 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 02-20 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an effective date prior to November 12, 1991, for a total disability rating for individual unemployability. REPRESENTATION Appellant represented by: Jenny Y. Twyford, Attorney WITNESS AT HEARING ON APPEAL Appellant and J.S. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1968, and October 1974 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In a June 2005 decision, the Board denied the issue of entitlement to an effective date prior to November 12, 1991, for a total disability rating based on individual unemployability (TDIU). The Veteran appealed the June 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Remand, the Court remanded the matter to the Board in March 2007. In a July 2007 decision, the Board denied the issue of entitlement to an effective date prior to November 12, 1991, for TDIU. The Veteran appealed the July 2007 Board decision to the Court, and in October 2009, the Court vacated and remanded the July 2007 Board decision to the Board. In a July 2010 decision, the Board denied the issue of entitlement to an effective date prior to November 12, 1991, for TDIU. The Veteran appealed the July 2010 Board decision to the Court, and in a May 2012 decision, the Court vacated and remanded the matter to the Board. FINDING OF FACT There was no pending claim prior to November 12, 1991, pursuant to which a TDIU could be granted, and the evidence does not demonstrate a "factually ascertainable increase" warranting a TDIU between November 12, 1990, and November 12, 1991. CONCLUSION OF LAW The criteria for a TDIU prior to November 12, 1991, have not been met. 38 U.S.C.A. §§ 1155, 5101, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to a post-remand re-adjudication of the Veteran's claim, a June 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter also essentially requested that the Veteran provide any evidence in his possession that pertained to these claims. 38 C.F.R. § 3.159(b)(1). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, and the Veteran was afforded the opportunity to present testimony before the Board. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Earlier Effective Date A rating decision in January 1979, granted a total disability rating for individual unemployability (TDIU), effective December 1, 1978. The Veteran appealed the effective date, contending that a 100 percent rating was warranted from the date of his discharge from the military in 1975. In a rating decision in August 1979, a 100 percent rating was granted for multiple sclerosis, effective September 28, 1976, the effective date of the award of service connection for multiple sclerosis, thereby satisfying the Veteran's appeal. Although the rating decision did not specifically so state, the previously assigned TDIU was superseded by the schedular 100 percent rating. See 38 C.F.R. § 4.16(a). In August 1984, the ratings for the Veteran's service-connected disorders were reduced because the Veteran "failed to cooperate" with scheduled examinations; the rating for multiple sclerosis was reduced to 30 percent and ratings for impotency and headaches were reduced to 0 percent, effective October 1, 1984. Based on a VA examination dated in March 1985, a rating decision in March 1985 denied a rating in excess of 30 percent for multiple sclerosis. In September 1985, VA received a congressional inquiry referencing the Veteran's belief that he should be "100%." In September 1986, the Veteran submitted a claim for an increased rating for multiple sclerosis. In February 1987, the RO denied an increased rating for multiple sclerosis, and the Veteran submitted a timely appeal. In May 1987, the Veteran submitted a statement in support of his claim for an increased rating, in which he alleged that he was "in excess of 100% disabled" and that "going to work would kill" him. This statement is a claim of entitlement to TDIU, which is "an element of all appeals of an increased rating" claim. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In a June 1988 decision, the Board denied a rating greater than 30 percent for multiple sclerosis. Although the Board did not specifically address the claim of entitlement to a TDIU, the June 1988 decision implicitly denied the claim of entitlement to a TDIU. In certain circumstances, a pending claim for benefits, either formal or informal, can be resolved by later adjudication of a related claim. This is known as the "implicit denial doctrine." A VA decision need not expressly discuss a pending claim for it to be deemed denied. See Jones v. Shinseki, 619 F.3d 1368, 1372 (Fed.Cir.2010); Munro v. Shinseki, 616 F.3d 1293, 1297 (Fed.Cir.2010); Adams v. Shinseki, 568 F.3d 956, 960 (Fed.Cir.2009). A four part test is used to determine whether a case has been implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether the claimant is represented by an attorney. Cogburn v. Shinseki, 24 Vet.App. 205, 212-214 (2010). In this case, the claim of an increased rating for multiple sclerosis and the request for a TDIU were closely related. The May 1987 statement indicates that the Veteran was claiming unemployability due to his multiple sclerosis, and, as noted above, a request for a TDIU is not a separate claim but a part of the increased rating claim. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, the June 1988 Board decision was sufficiently specific. "The award of a disability rating less than 100% generally provides notice as to how the Secretary has rated a claimant's condition and serves as a final decision, if unappealed, with regard to any higher rating associated with the underlying disability, including TDIU." See Locklear v. Shinseki, 24 Vet.App. 311, 316 (2011). The June 1988 Board decision determined that the evidence, which included evidence pertaining to the Veteran's employment status, did not warrant a rating in excess of 30 percent for multiple sclerosis. Although the June 1988 decision does not specifically address employability, the Board considered whether a higher rating was warranted based on industrial impairment, to include total industrial impairment, and specifically found that the Veteran's "disease process [was] not productive of more than definite social and industrial impairment." Thus, the June 1988 decision provided language from which it reasonably could be inferred that entitlement to a TDIU was denied. Furthermore, although the request for a TDIU was not submitted at the same time as the request for an increased rating, the implicit denial doctrine is not limited to situations in which the Veteran files the claims in a single application. Adams, 568 F.3d at 964. What matters is whether the claims are "closely associated" in time and in the manner in which they were presented." Id. Although the claim of entitlement to a TDIU was submitted approximately eight months after the claim for increased rating, it was submitted in conjunction with the claim for an increased rating and the Board finds the claims are "closely associated." Finally, the record indicates that the Veteran was represented by a service organization at the time of the June 1988 Board decision. Thus, the Board finds the May 1987 claim of entitlement to a TDIU was implicitly denied by the Board in the June 1988 decision. In April 1988, VA received claims of increased rating for headaches and impotency. In November 1991, VA received a claim of increase for multiple sclerosis. In April 1992, the Veteran submitted a statement in which he expressed his desire for a 100 percent rating for multiple sclerosis. In October 1992, the Veteran filed a formal claim for TDIU. In May 2001, VA awarded a TDIU effective November 12, 1991. The Veteran contends that an earlier effective date is warranted for the award of a TDIU. A TDIU is an award of increased compensation. The effective date of an increase in compensation shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (2012). However, if evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date shall be the date of the factually ascertainable increase rather than the date of receipt. 38 U.S.C.A. § 5110 (b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2). Generally then, to determine an appropriate effective date for an increased rating, the Board must determine when a claim for an increased rating was received and, if possible, when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (2012). Additionally, 38 C.F.R. § 3.155(a) provides that any communication or action from a claimant, indicating an intent to apply for one or more benefits under the laws administered by the VA, may be considered an informal claim. Such informal claims must identify the benefit sought. The submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering "informal claims" based on medical records, the "date of claim" will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment and the date of receipt for evidence from a private physician, layman, state, or other institution. 38 C.F.R. §§ 3.155(c); 3.157(b). The Board finds November 12, 1991, is the earliest possible "date of claim" for a TDIU. The Board has reviewed the record dating prior to November 12, 1991, but finds there is no pending claim for a TDIU prior to that date. The Board acknowledges that the Veteran filed an informal claim of entitlement to a TDIU in May 1987. As discussed above, however, this claim was implicitly denied in the June 1988 Board decision, which is final. As such, the May 1987 claim was not pending after the June 1988 Board decision, and it is not a possible date of claim based on which an earlier effective date could be granted. The Board further acknowledges that the Veteran filed claims of increased rating for headaches and impotency in April 1988. Such evidence only reasonably raises a claim of TDIU if the Veteran already meets the schedular requirements or if the Veteran has made a claim for the "highest rating possible" for a service-connected disability. See Norris v. West, 12 Vet. App. 413, 418 (1999); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); VAOPGCPREC 12-01, 69 Fed. Reg. 25175 (2004). The record documents that the Veteran did not meet the schedular requirements at the time the aforementioned evidence was received. Moreover, the April 1988 record does not suggest a request for the "highest rating possible" for headaches or impotency. Of significance, a history of unemployability due to either or both disorders was not contended or of record. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the April 1988 claims cannot be construed as a claim for TDIU. Additionally, there is no other record dating between November 1988 and November 1991 which could be interpreted as an informal or formal claim for TDIU. Having determined that November 12, 1991, is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for TDIU were met. In making this determination, the Board has considered any impairment of psychiatric, motor, and sensory functioning as associated with the multiple sclerosis unless the record specifies that it is unrelated to the multiple sclerosis. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and 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). The record indicates that the Veteran met the schedular criteria for TDIU as of November 12, 1991. A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). For a veteran to prevail on an extraschedular basis, the record must reflect some factor which takes the case outside the schedular criteria. 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 a 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 evidence does not suggest that there was a "factually ascertainable" increase in the service-connected disorders so as to possibly warrant TDIU on an extraschedular basis at any time between November 12, 1990, and November 12, 1991. The record only includes one record dating during this period, a November 8, 1991, VA treatment record which reflects a history of low back pain and numbness and left lower extremity pain since January 1991. Although the Veteran asserted that the pain was worse than that experienced in the past, he did not assert the existence of any additional functional, to include occupational, impairment as a result of the pain or other symptoms, and the Board finds the record standing alone is not evidence of TDIU. The Board acknowledges that the record includes findings of unemployability dating prior to 1990, to include records associated with Social Security Administration (SSA) benefits dating in the 1970s and 1980s and August 1985 inpatient records. Although these records reflect findings and histories of unemployability, these records are dated prior to November 12, 1990; as such, they cannot, by their very nature, demonstrate a factually ascertainable increase in the year prior to the date of claim. See 38 C.F.R. § 3.400(o). As noted above, if the factually ascertainable increase predates the date of claim by more than one year, the effective date is the date of claim. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) ("[VA] has responsibility to review the evidence of record to ascertain whether an increase in disability occurred in the one year prior to the application"). The Board acknowledges that the recorded history of the disabilities must be considered in order to make a more accurate evaluation. However, these records were already considered by the Board in a final June 1988 decision which implicitly denied a TDIU. Moreover, the Veteran has not shown how these records could provide probative information as to his employability between November 12, 1990, and November 12, 1991. With respect to the records dating prior to 1985, the Veteran has not explained why the findings and histories contained therein are probative in light of the subsequent evidence, to include the competent history from the Veteran that his multiple sclerosis had improved and was in "remission." Based on the evidence of remission after these records were created, and the absence of either medical or lay competent evidence of cyclical remissions and exacerbations which resulted in a period of exacerbation beginning some time between November 12, 1990, and November 12, 1991, the Board finds these records cannot provide probative information as to whether the multiple sclerosis and its residuals rendered the Veteran unemployable at any time between November 12, 1990, and November 12, 1991. The Board finds the March 1985 inpatient records, and the other evidence dating from 1985 to November 12, 1990, are also not probative. Although the records include findings suggestive of unemployability, primarily due to psychiatric symptoms associated with the multiple sclerosis, the records also include a finding of symptom-exaggeration and no more than mild impairment due to the service-connected multiple sclerosis. The Board finds these records do not suggest an increasing impairment due to the service-connected disabilities, which could be interpreted as evidence of a factually ascertainable decrease in employability at any time between November 12, 1990, and November 12, 1991. In sum, the Board finds the earliest possible date of claim is November 12, 1991. The Board further finds the evidence does not suggest a factually ascertainable increase in the Veteran's symptomatology which could warrant a TDIU at any time in the year prior to November 12, 1991. 38 C.F.R. § 3.400. When there is not a factually ascertainable increase within the year prior to the date of claim, the effective date of a TDIU is the date of receipt of claim or the date entitlement arose, whichever is later. As such, an effective date prior to November 12, 1991, is not warranted. ORDER An effective date prior to November 12, 1991, for TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs