Citation Nr: 1320965 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 04-34 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis. 2. Entitlement to an earlier effective date than October 18, 2005, for a grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January to September 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In a September 2003 rating decision, the RO granted service connection for chronic prostatitis, assigning a 20 percent rating effective January 28, 2002. The Veteran appealed both the disability rating and the effective date assigned for his service-connected chronic prostatitis. In a September 2005 rating decision, the RO assigned a higher 40 percent rating for the Veteran's service-connected chronic prostatitis. The Veteran submitted a statement that he did not disagree with the 40 percent rating assigned for his service-connected chronic prostatitis. He argued instead that the 40 percent rating should go back to the date of claim. Thus, the issue of entitlement to an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis is on appeal. In a November 2006 rating decision, the RO assigned a 60 percent rating for the Veteran's service-connected chronic prostatitis and also assigned a total disability rating based on individual unemployability (TDIU), both effective October 18, 2005. The Veteran appealed the effective date assigned for a TDIU. In December 2007, the Board denied entitlement to an effective date earlier than January 28, 2002, for a grant of service connection for chronic prostatitis. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Veteran, through his attorney, and VA's Office of General Counsel (OGC) filed a Joint Motion for Remand ("Joint Motion") seeking to vacate the Board's December 2007 decision. The Court issued an Order granting the Joint Motion later in August 2008. When the case came back to the Board, it remanded the claim for compliance with the Joint Motion. Following the RO's compliance with the Board's remand directives, the Board again remanded the claim because the Veteran had asked for a Travel Board hearing. A Travel Board hearing was held at the RO in February 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In June 2011, the Board denied the Veteran's claim for an earlier effective date than January 28, 2002 for a grant of service connection for chronic prostatitis. This decision was not appealed to the Court and became final. Accordingly, the Board finds that the only issues still on appeal are as stated on the title page of this decision. In November 2011 correspondence, the Veteran, through his attorney, requested a copy of his claims file pursuant to the Privacy Act ("November 2011 Privacy Act request") and an additional 60 days to review these records and submit additional argument to the Board. In January 2012, the Board denied the Veteran's currently appealed claims. The Veteran, through his attorney, and OGC filed a Joint Motion with the Court in September 2012 seeking remand of the Board's January 2012 decision. Both parties specifically contended in the Joint Motion that the Board had committed administrative error in adjudicating the Veteran's currently appealed claims prior to complying with the November 2011 Privacy Act request which was pending at the time of the Board's January 2012 decision. See Joint Motion dated September 5, 2012, at pp. 2. Both parties also contended in the Joint Motion that the Board had committed administrative error in not providing the Veteran and his attorney 60 days to submit additional argument once the records requested in the November 2011 Privacy Act request were provided by the Board to the Veteran's attorney. Id. The Court granted the Joint Motion later in September 2012. The Board finds it significant that the Joint Motion did not challenge the merits of the January 2012 decision denying the Veteran's currently appealed claims. In January 2013 correspondence, the Veteran's attorney resubmitted the November 2011 Privacy Act request. In separate May 2013 correspondence, the Veteran's attorney requested that the Board issue a decision on the Veteran's claims. The records requested by the Veteran's attorney in January 2013 were provided to him in June 2013. The Board finds that, given the length of time which has elapsed since the Veteran's attorney initiated an appeal of the January 2012 decision to the Court, he has had sufficient time to present additional evidence or argument in support of the Veteran's currently appealed claims. FINDINGS OF FACT 1. Prior to January 27, 2005, the Veteran's chronic prostatitis was not manifested by voiding dysfunction requiring the wearing of absorbent pads which must be changed two to four times per day and daytime voiding intervals of less than one hour or awakening to void five times or more per night. 2. Prior to October 18, 2005, service connection was in effect only for chronic prostatitis evaluated as 40 percent disabling; the Veteran's combined disability evaluation for compensation was 40 percent. 3. Prior to October 18, 2005, it was not factually ascertainable that the Veteran was unemployable solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157(a), 3.400(o), 4.7, 4.115b, Diagnostic Code (DC) 7517 (2012). 2. The criteria for an earlier effective date than October 18, 2005, for a grant of a TDIU are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.400, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 ), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the RO provided the Veteran with all required notice by a letters sent in November 2005 and March 2006 following the Board's remand. Although the March 2006 letter was sent after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following provision of the required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in February 2008. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (finding that timing error may be cured by new VCAA notification followed by readjudication of claim). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issues as including a claim for an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis and for an earlier effective date than October 18, 2005, for a grant of a TDIU. Although the Veteran's attorney was acknowledged as his representative of record, the attorney was not present at the hearing and the Veteran agreed to proceed with his hearing without his attorney being present. The VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The representative specifically asked the Veteran about what evidence, in the Veteran's opinion, entitled him to the earlier effective dates being sought on appeal. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. The VLJ asked questions to draw out the evidence which established entitlement to an earlier effective date, the only element of the claims in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The record also reflects that all pertinent available service treatment records (STRs), and all available post-service medical evidence identified by the Veteran have been obtained. VA attempted to obtain the Social Security Administration (SSA) records; however, no records were received. The RO initially requested the records in November 2003. It received a response that after an "exhaustive and comprehensive" search, the SSA was unable to locate the Veteran's folder. VA sent another request in December 2008. It received a response that there are no records available. In February 2009, the RO made a formal finding that the SSA records were unavailable and that further attempts to obtain the records would be futile. See February 2008 VA Memorandum. That same month, the RO informed the Veteran of its inability to obtain the SSA records. The Veteran responded by stating that he did not have any copies of his SSA records. The Board finds that the RO properly fulfilled its duty to assist in attempting to obtain the SSA records. See 38 C.F.R. § 3.159(c)(2) (2012). The Board also notes that, since its January 2012 decision, the Veteran's attorney submitted a copy of correspondence from SSA dated in September 2012 along with a waiver of RO jurisdiction over this evidence. A review of this correspondence indicates that the Veteran currently is in receipt of SSA benefits based on his age and not due to any disabilities. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board also is unaware of any such evidence. An examination is not required in this case as it would not be relevant to either of the earlier effective date claims currently on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Law and Regulations In general, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011). In both initial rating claims and increased rating claims, the Board must discuss whether "staged ratings" are warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's chronic prostatitis has been evaluated by analogy to injury of the bladder under 38 C.F.R. § 4.115b, DC 7517. See 38 C.F.R. § 4.115b, DC 7517 (2012). This directs that the Veteran's disability be rated as voiding dysfunction. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The rating schedule provides descriptions of various levels of disability in each of these symptom areas. Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. See 38 C.F.R. § 4.115a. Voiding dysfunction is rated based on urine leakage, frequency or obstructed voiding. The particular voiding condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. Urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day merits a 20 percent rating. Urinary leakage which requires the use of absorbent materials which must be changed two to four times a day warrants a 40 percent rating. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence warrants a maximum rating of 60 percent when it requires the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. 38 C.F.R. § 4.115a. Daytime voiding with an interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding with an interval of less than one hour or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a. 40 percent is the maximum rating allowed for urinary frequency. With respect to a TDIU, the Board notes that, once a Veteran submits evidence of a disability, makes a claim for the highest rating possible, and submits evidence of unemployability, an informal claim for a TDIU is raised. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); 38 C.F.R. § 3.155. The claim for a TDIU rating is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). 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). Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). 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). With respect to earlier effective date claims, the relevant law and regulations provide that the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the 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. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: (1) A report of examination or hospitalization by VA or uniformed services, where such report relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission; (2) Evidence from a private physician or layman, with the date of receipt of such evidence accepted when the evidence is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits; (3) When submitted by or on behalf of the Veteran and entitlement is shown, date of receipt by VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals. 38 C.F.R. § 3.157(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background & Analysis The Board finds that the preponderance of the evidence is against the Veteran's claims for an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis and an earlier effective date than October 18, 2005, for a grant of a TDIU. The record evidence does not support the Veteran's assertions concerning his entitlement to earlier effective dates. As noted, service connection originally was granted for chronic prostatitis effective January 28, 2002. Prior to January 27, 2005, the Veteran's chronic prostatitis (rated 20 percent disabling) was manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times a day and daytime voiding between one and two hours or awakening to void three to four times nightly. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7517 (2012). From January 27, 2005, to October 18, 2005, the Veteran's chronic prostatitis (rated 40 percent disabling) was manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times daily and/or urinary frequency with a daytime voiding interval less than one hour or awakening to void five or more times per night. Id. The RO received the Veteran's claim of entitlement to a TDIU on October 18, 2005. A review of private urology treatment records dated in 2002 disclose the Veteran's complaints of low back pain, burning upon urination, and slow stream. He reported that his symptoms were improved with antibiotics, but not completely. The Veteran endorsed nocturia one to three times nightly. He was assessed as having prostatitis and BPH. The voluminous record includes many statements from the Veteran, including his report of symptoms such as urinary frequency, discomfort, infection, incontinence, pain, and fatigue associated with his chronic prostatitis. In August 2003, the Veteran was afforded a VA genitourinary examination. The examiner reviewed the Veteran's claims files and described the Veteran's reported history. The Veteran advised that he has trouble with urination including, burning upon urination and intermittent problems with starting a stream since service. He endorsed urinating as many as forty to fifty times daily, or at times he is unable to urinate at all. He reported nocturia zero to three times nightly. The Veteran related that sometimes he is incontinent and must wear a pad. The examiner diagnosed the Veteran as having chronic prostatitis with intermittent flare-ups and varied symptomatology, but he had a normal examination on that day. Private urology treatment records dated in 2003 reflect improved symptoms related to the Veteran's chronic prostatitis. An October 2003 private treatment record shows the Veteran's complaints of urinary frequency, but blamed it on him drinking a lot of water. There are no medical treatment records dated from 2003 to 2005, other than a January 2005 private radiology report regarding testicular pain merely noting a history of chronic prostatitis, but no mention of any voiding dysfunction. In conjunction with the Veteran's appeal, he was afforded another VA examination in June 2005. He reported voiding two to twenty times per day on variable days with two to eight voids per night. The Veteran endorsed hesitancy, decreased size and force of stream, and dysuria. He reported on and off incontinence with use of absorbent pads four to five days per week. The Veteran had no history of surgery, recurrent urinary tract infections, bladder stones, kidney stones, or treatment for malignancy. The examiner noted that the Veteran's symptoms impact his daily activities due to back pain and testicular pain making it difficult for him to sit. He was noted to be unemployed. He was diagnosed as having chronic prostatitis. In June 2006, the Veteran was afforded a VA genitourinary examination. The Veteran reported urinary incontinence, and he required the use of absorbent pads daily. These pads had to be changed five times during the day and three times nightly. The Veteran was unable to identify how often he urinated, and reported burning and itching sensation in the urethra when not taking his medications. Again, the Veteran had no history of surgery, recurrent urinary tract infections, bladder stones, kidney stones, or treatment for malignancy. The examiner noted that the Veteran had not worked since 1990 because of his urinary frequency and incontinence. The Veteran indicated that he is able to perform some activities of daily living, but avoids social gatherings, long road trips, and church visits due to his urinary condition. The examiner confirmed the chronic prostatitis diagnosis, and noted that there was residual urinary incontinence requiring the use of diapers daily, and a small hydrocele on the right. The examiner opined that the Veteran was unfit for sedentary or physical employment because of his urinary condition and the change of absorbent materials about five times per day. In regards to the Veteran's increased rating claim, his request for increase was received by the RO on January 27, 2005. As noted above, the general rule is that the effective date of an increased rating is no earlier than the date the claim is received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o)(1) (2012). The exception is if there is factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. See also 38 U.S.C.A. 5110(b)(2); Harper, 10 Vet. App. at 125; and VAOPGCPREC 12-98. The Board has reviewed the available treatment records dated in the year prior to January 27, 2005, and finds no evidence of factually ascertainable increase in disability. There is a radiology report regarding the Veteran's testicular pain with no discussion as to voiding dysfunction. Upon review of treatment records dated from January 2004 to January 2005, the evidence does not show that the Veteran experienced voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times daily and/or urinary frequency with a daytime voiding interval less than one hour or awakening to void five or more times per night. The first instance when symptoms analogous to a 40 percent rating for were shown was during the June 2005 VA examination. Thus, the Board finds that the Veteran's effective date for a 40 percent rating for his service-connected chronic prostatitis cannot be earlier than the date VA received his claim for increase (in this case, January 27, 2005). The current effective date for a TDIU is October 18, 2005, the date of the Veteran's claim for a TDIU and when he first met the schedular criteria for a TDIU. The evidence of record shows that the Veteran was not employed from 1990 to the present. His unemployment was not attributed to his service-connected chronic prostatitis until a June 2006 VA examination. The Veteran is not entitled to a TDIU prior to October 18, 2005, because the criteria for a TDIU were not met prior to that date. He did not meet the minimum disability rating required to be considered for an award of a TDIU. Service connection is in effect only for chronic prostatitis and he only was entitled to a 40 percent rating for this disability prior to October 18, 2005. The record evidence does not indicate that the Veteran was unemployable solely due to his service-connected prostatitis within the one year time period prior to the October 18, 2005, TDIU claim. See 38 C.F.R. § 4.16(a) (2012). In other words, prior to October 18, 2005, the Veteran's service-connected disability rating had not been shown to meet the preliminary criteria for consideration for TDIU. Id. The record demonstrates that the Veteran's chronic prostatitis warranted a 60 percent rating and that he was unemployable solely due to his service-connected chronic prostatitis following a June 2006 VA examination. An effective date of October 18, 2005 was assigned as that was the date that VA received the Veteran's TDIU claim and the date that his service-connected chronic prostatitis warranted a 60 percent rating. As noted above, there are no clinical treatment records dated from 2003 to January 2005 showing any assessment of the Veteran's chronic prostatitis symptoms. Although the Board is permitted to look at the year prior to the claim for increase, in this case, the evidence does not a factually ascertainable increase in the Veteran's chronic prostatitis disability for the one-year time period between October 2004 and October 2005. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered carefully the lay evidence offered by the Veteran in the form of his correspondence to VA. The Veteran, as a layperson, is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran's lay statements and Board hearing testimony do not show that his service-connected chronic prostatitis has more closely approximated the criteria for a higher rating in the year prior to January 27, 2005 or that he is unemployable solely due to his service-connected chronic prostatitis. In summary, the Board finds that the criteria for an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis and for an earlier effective date than October 18, 2005, for the grant of a TDIU are not met. The Board finally notes that, since its January 2012 decision, the Veteran's attorney has submitted several letters in support of this appeal. As noted in the Introduction, the Joint Motion did not challenge the merits of the underlying Board decision issued in January 2012 which denied the Veteran's currently appealed claims. Instead, the Joint Motion focused exclusively on alleged administrative processing errors by the Board concerning a Privacy Act request and a request for additional time. As also noted in the Introduction, the Board corrected the Privacy Act error in June 2013 by providing the Veteran's attorney the records that he had requested prior to the January 2012 Board decision. As noted further in the Introduction, given the length of time which has elapsed since the January 2012 Board decision, the Board finds that the Veteran's attorney has had sufficient time to submit additional evidence and argument in support of this appeal. This finding is supported by the fact that, with the exception of correspondence from the Veteran's attorney concerning the alleged errors noted in the Joint Motion, no additional evidence or argument concerning the Veteran's currently appealed claims has been identified or submitted by the Veteran's attorney since January 2012. The Board is aware of its obligation "to conduct a critical examination of the justification for its previous decision" in this case. See Joint Motion dated September 5, 2012, at pp. 3 (citing Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991)). Having conducted this necessary examination of the justification for the prior decision issued in January 2012 - which was not challenged on the merits by both parties to the Joint Motion when they appealed the January 2012 Board decision to the Court - the Board concludes that its previous decision was justified. ORDER Entitlement to an earlier effective date than January 27, 2005, for a 40 percent rating for chronic prostatitis is denied. Entitlement to an earlier effective date than October 18, 2005, for a grant of a TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs