Citation Nr: 1320623 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-35 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than December 11, 2007 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Calvin Hansen, Esq. ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A rating decision in August 2006 granted service connection for posttraumatic stress disorder (PTSD) with alcohol abuse, evaluated as 30 percent disabling effective March 30, 2006. In a March 2008 Supplemental Statement of the Case (SSOC), the RO, raised the Veteran's initial PTSD evaluation to 50 percent. The Veteran's claim for a still higher evaluation remained on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). The Board issued a decision in May 2009 denying the claim for an increased rating for PTSD. A denial was issued as to several other claims the Veteran had appealed: service connection for a back disorder, left calf condition, and left hand condition; and increased ratings for shrapnel wounds of the right clavicle, left forearm, and right calf, as well as for a left elbow scar. The Veteran appealed the May 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court), to the extent the determination therein denied an increased rating for PTSD. In a February 2011 Memorandum Decision, the Court issued a ruling vacating the Board's decision and remanding the matter back to the Board. During the pendency of the Veteran's appeal to the Court, however, regardless of the status of the Veteran's claim for increased rating for PTSD before that appellate body, the RO continued to adjudicate a claim for increase. Through a March 2010 rating decision, the RO increased to 70 percent the evaluation for service-connected psychiatric disability from December 14, 2009 (this time including depression as part of the overall service-connected condition). Also granted was TDIU from December 22, 2009. The Veteran timely appealed from this March 2010 decision as well, seeking earlier effective dates for the awards of a 70 percent rating for PTSD, and a TDIU. The issues presented before the Board in a January 2012 decision were: An initial increased rating for PTSD with alcohol abuse and major depression, higher than 50 percent from March 30, 2006 to December 13, 2009, and higher than 70 percent since December 14, 2009; and an effective date earlier than December 22, 2009 for TDIU. In the January 2012 decision, the Board denied a higher rating for PTSD with alcohol abuse and major depression from March 30, 2006 to December 10, 2007; and TDIU prior to December 11, 2007. The Board then awarded a 100 percent evaluation for PTSD with alcohol abuse and depression from December 11, 2007. In September 2012, the Veteran's attorney and VA's Office of General Counsel, representing the Secretary of VA, filed a joint motion requesting that the Court vacate that part of the Board's January 2012 decision that denied an effective date earlier than December 11, 2007 for TDIU. Later in September 2012, the Court issued an order granting the parties' joint motion for vacate and partial remand to the Board for compliance with directives specified in the joint motion. FINDING OF FACT The Veteran's unemployability due to service-connected disabilities, including PTSD with alcohol abuse and major depression and bilateral hearing loss, occurred no earlier than December 11, 2007, when he was treated for disablement due to his mental impairment, namely, PTSD. CONCLUSION OF LAW The criteria are not met for an effective date earlier than December 11, 2007, for the grant of the TDIU. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.400, 4.16, 4.41 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353 -56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). In regard to the claim on appeal, an earlier effective date for TDIU, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating or effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). An earlier effective date for a TDIU involves the assignment of an effective date of benefits arising out of contention with the RO rating decision to initially award those underlying benefits, and thus implicates the avoidance of VCAA notice requirements. The RO has taken appropriate action to comply with the duty to assist the Veteran in this case, through obtaining VA outpatient records, and records pertaining to the receipt of Social Security Administration (SSA) disability benefits. The RO has also arranged for the Veteran to undergo several VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In support of his claims, the Veteran provided private treatment records, and several personal statements. He declined the opportunity to testify at a hearing. There is no indication of any further relevant evidence or information which has not already been obtained. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. An Effective Date Earlier than December 11, 2007 for the Grant of TDIU TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by disabilities that are not service connected. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. So, in making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). In determining whether a Veteran satisfies these threshold minimum rating requirements of this VA regulation for consideration of a TDIU, VA may consider disabilities resulting from single accident or common etiology or affecting both upper or lower extremities, etc., as one collective disability rather than as several individual disabilities. Id. Also, even if the Veteran does not satisfy these threshold minimum rating requirements of § 4.16(a), he could still establish his entitlement to a TDIU on an extra-schedular basis under the alternative provisions of § 4.16(b), if indeed unemployable on account of service-connected disability or disabilities. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. In a claim for a higher disability rating (i.e., increased compensation), unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The criteria for the effective date of an award for an increase in compensation are found in 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §§ 3.400(o)(1) and (o)(2). According to this statute and regulation, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2). Thus, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). In addition, under 38 C.F.R. § 3.157(b) once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: the report of examination or hospitalization at a VA or uniformed services medical facility, evidence from a private physician or layperson that shows the reasonable probability of entitlement to benefits, or examination reports or clinical records from State medical facilities or other institutions. The standard for determining whether an informal TDIU claim has been filed is provided in the holding of the U. S. Court of Appeals for the Federal Circuit in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) that when a claimant submits evidence of a disability and makes a claim for the highest rating possible, and further submits evidence of unemployability, an informal claim is set forth pursuant to 38 C.F.R. § 3.155(a) and VA must consider entitlement to a TDIU. See also Norris v. West, 12 Vet. App. 413, 421 (1999). The Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Veteran is now service-connected for PTSD, residuals of shrapnel wounds of the right clavicle, left forearm, right calf, right chest, and right elbow, hearing loss, tinnitus, left wrist tendonitis, left elbow scar, and right elbow epicondylitis and tendonitis. The Veteran was awarded service connection for PTSD effective to March 30, 2006 the date of his initial claim. TDIU was raised informally in this case in private medical records in December 2007. However, it has been held that when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." As a result, here the Board must retroactively consider TDIU back to March 30, 2006, the original effective date of service connection for PTSD with alcohol abuse. (Prior to that date, the Veteran has a combined schedular rating of 20 percent and there was otherwise no evidence establishing a claim for TDIU or entitlement to TDIU on a schedular or extraschedular basis.) The schedular criteria for TDIU were met at least as early as March 30, 2006, since the Veteran at that time had at least one service-connected disability rated 50 percent disabling, his service-connected PTSD, and additional service-connected disability to bring his total combined evaluation to 80 percent. See 38 C.F.R. § 4.16(a) (schedular criteria are met when there are two or more disabilities, with at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent.) The Board must consider at what point the Veteran was rendered totally incapable of maintaining substantially gainful employment by reason of service-connected disability. At a VA PTSD examination in June 2006, the Veteran's PTSD symptoms were reported as daily recurrent and distressing recollections of traumatic events, avoidance of stimuli associated with traumatic events, and increased arousal. He had irritability with some people in his business. It was reported that his usual occupations were ranching and auctioneering. The diagnoses were: chronic PTSD, and active alcohol abuse. The Global Assessment of Functioning score was 55, present and for the past year. At a June 2006 audiological examination, the Veteran reported hearing concerns and tinnitus. His greatest difficulty was hearing when there was background noise. It was reported that the Veteran worked in ranching and as an auctioneer, as well as in real estate. At 1000, 2000, 3000, and 4000 Hertz, the Veteran's hearing in the right ear in decibels was 30, 35, 35, and 55, for an average of 38.75; and for the left, it was 30, 35, 35,and 45, for an average of 36. 25. Right and left ear speech recognitions scores respectively were 94 on the right and 98 on the left. It was reported that the Veteran had mild to moderately severe sensorineural hearing loss in the right ear and mild to moderate in the left ear. In July 2007, VA medical examinations of the joints revealed some loss of sensation in the left forearm, wrist and had associated secondary to old shrapnel wounds. In a contemporaneous VA hand and finger examination, it was reported that a significant occupational effect decreased mobility, dexterity, problems lifting, and carrying, and decreased strength. At a March 2007 VA PTSD examination, it was reported that the Veteran had continued PTSD symptoms, including intrusive recollections, avoidance of stimuli associated with traumatic events, and increased arousal. His symptoms were described as moderate level. The Veteran was employed in auctioneering and farm sales. He worked for a company part-time. In the past year he had taken three days sick leave due to pain. The diagnoses were: chronic PTSD; and continuous alcohol abuse. The examiner stated that the PTSD had not impaired the Veteran's employability. At a March 2007 VA audiology examination, the Veteran reported more difficulty understanding speech since his last evaluation. Speech discrimination scores were 72 left and 96 on the right. It was reported that the Veteran had mild to moderately severe bilateral sensorineural hearing loss. In a December 11, 2007 private psychological evaluation, it was reported that the Veteran had continued in a career in farming. He did very little auctioneering and some real estate. It was also stated that the Veteran had been unable to work as a normal individual, and failed at virtually every endeavor since his discharge in 1969. In January 2008, the RO granted service connection for right elbow epicondylitis and tendonitis, evaluated as 10 percent disabling, effective October 15, 2007; an increased 50 percent rating for PTSD, effective from March 3, 2006; and an increased 30 percent rating for a right clavicle shrapnel wound with degenerative joint disease of the right shoulder, also effective from March 30, 2006. The Veteran's combined disability evaluation was 30 percent. Associated with the claims folder is a November 2009 Social Security Administration Disability Determination. It was determined that the Veteran's disability began in March 2006, and that his primary disability was degenerative joint disease in both shoulders, and bilateral sensorineural hearing loss. In a vocational rational in the SSA report it was mentioned that bilateral sensorineural hearing loss that had been indicated precluded the Veteran's past relevant work as an auctioneer working in loud environments, and he only could have occasional handling and fingering on the left (upper extremity) due to carpal tunnel syndrome and no overhead reaching which precluded past relevant work. Analysis The Board does not dispute that during the period prior to December 11, 2007, the assigned effective date of TDIU, the Veteran experienced significant service-connected symptomatology that impacted his employability. However, the Board is compelled to conclude that the record does not support the assignment of an effective date for TDIU prior to December 11, 2007. Prior to December 11, 2007 the Veteran received treatment for several service connected disabilities that resulted in significant disablement. He had PTSD symptoms that reportedly interfered with his occupations in the ranching/farming and auctioneering fields. However, the Veteran's GAF score during this time was 55. The GAF is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). It is also imperative to point out that the record indicates that during this period prior to December 11, 2007, the Veteran continued to work, in ranching, farming, auctioneering, and apparently in real estate. In March 2007, a VA clinician opined that PTSD had not impaired the Veteran's employability. The Veteran also had sensory, weakness, and pain symptoms associated with his service connected left arm, and right elbow and shoulder disorders affecting his occupation in ranching and farming probably, but there is no indication that the symptoms precluded employment. In the September 2012 joint motion from the parties, it was stated that in its January 2012 decision denying an effective date earlier than December 11, 2007 for TDIU, the Board did not fully consider and provide an adequate statement of reasons and bases discussing evidence obtained from SSA. The evidence from SSA includes a November 2009 Disability Determination, deciding that the Veteran's disability began in March 2006, and it included degenerative joint disease in both shoulders, and bilateral sensorineural hearing loss. The SSA records concerning also mentioned that the Veteran's bilateral sensorineural hearing loss precluded past relevant work as an auctioneer, and that left carpal tunnel syndrome, with overhead reaching precluded past relevant work. While SSA's disability determination is favorable evidence that must be considered it is also imperative to mention at this point that VA is not bound by findings of entitlement to disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Also and as mentioned previously, while certainly the Veteran had some physical disablement regarding his left and right arm and shoulder, the record shows that he continued to work during the period prior to December 11, 2007. Further, while his bilateral sensorineural hearing loss disability was significant, it was clinically described as only mild to moderately severe during this period. There is no indication from the record that prior to December 11, 2007 his bilateral hearing loss, or any of his several other service connected disabilities, for that matter, including PTSD, precluded his employability. In fact, the evidence establishes that he was working in auctioneering and farm sales. Notably, the March 2007 VA examiner indicated that PTSD had not impaired employability. The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). It has considered the Veteran's SSA disability determination records and concludes that while probative indeed; those records do not have substantial weight when considering the remaining evidentiary data. Further, while the December 11, 2007, private psychologist's report points out that the Veteran had been unable to work as a normal individual and failed at virtually every endeavor since his discharge in 1969, again this is in contradiction with the evidence clearly establishing that he was gainfully employed as a rancher and auctioneer in 2006 and 2007. The Board does not find the psychologist's statement to be persuasive in terms of establishing entitlement to a TDIU prior to December 11, 2007. It therefore is not shown that the Veteran was unable to obtain or maintain substantially gainful employment on account of his service-connected disabilities (and only these disabilities) until December 11, 2007, when he was treated for disablement due to his mental impairment, namely, PTSD. So this marks the correct effective date for his TDIU entitlement. 38 C.F.R. § 3.400(o)(1). For these reasons and bases, the preponderance of the evidence is against this claim for an earlier effective date for the TDIU. And since the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An effective date earlier than December 11, 2007 for the award of a TDIU is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs