Citation Nr: 1322386 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-07 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 2, 2004. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony at a Board hearing in February 2012. A transcript of the hearing is associated with the Veteran's claims folder. In April 2012, the Board remanded this issue for further development. As noted in the remand, the Veteran had submitted a claim for TDIU in June 1998. The RO denied the claim in a May 2003 rating decision. On March 2, 2004, the Veteran submitted a letter which the Board interprets as disagreement with the May 2003 determination. In October 2004, the RO granted a TDIU on an extraschedular basis effective March 2, 2004. The Board has determined that the earlier claim for TDIU had remained open. In the April 2012 remand, the Board ordered that the case be referred to the Director, Compensation and Pension Service, for extraschedular consideration of the TDIU issue prior to March 2, 2004, in the first instance. This resulted in a denial of a TDIU prior to March 2, 2004, and the appeal has been returned for final appellate consideration. 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). FINDING OF FACT On July 1, 2000, it first became factually ascertainable that the Veteran's service-connected back disability became so severe that it made it impossible to follow a substantially gainful occupation. CONCLUSION OF LAW Effective July 1, 2000, but no earlier, the criteria for a TDIU due to service-connected disabilities have been met, on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's earlier effective date claim arises from an appeal of the initial evaluation following the grant of the TDIU. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Here, the Veteran was sent letters in March 2003 and October 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA)-Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2012 Board hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). If, however, the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet.App. 125 (1997). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate 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. 38 C.F.R. § 3.157. 38 C.F.R. § 3.157(b)(2), specifically indicates that the date on which evidence is received from a private physician or layman is the date which will be used for effective date purposes. The Board notes that the proper effective date of entitlement to a TDIU is either the date of the claim (June 1998) or the date at which it became factually ascertainable that an increase in disability had occurred, whichever date is later. Consequently, the Board must determine when it became factually ascertainable that the Veteran's service connected disabilities increased to the point where a TDIU was warranted. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 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 section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Prior to March 2, 2004, the Veteran's service-connected disabilities were chronic lumbar syndrome with degenerative disc disease, evaluated as 40 percent disabling; and radiculopathy in the right sciatic nerve distribution associated with chronic lumbar syndrome with degenerative disc disease, evaluated as 10 percent disabling. His combined rating, prior to March 2, 2004, was therefore 50 percent. See 38 C.F.R. § 4.25. Thus, prior to March 2, 2004, the Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board, however, must still determine whether the Veteran's service-connected disabilities resulted in impairment so severe that it was impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Consequently, the crux of the issue is whether the Veteran's back disability (and associated radiculopathy) alone, rendered the Veteran unemployable prior to March 2, 2004. The Veteran back disability has been service connected since October 17, 1997. He filed a claim for entitlement to a TDIU in June 1998. He also filed for Social Security Disability benefits in March 1998. A January 1997 MRI reflected mild to moderate diffuse disc bulging involving the L5-S1 disc without associated significant vertebral canal stenosis. A March 1997 outpatient treatment report reflects that the Veteran experienced some pain relief with the use of a TENS unit; and a November 1997 outpatient treatment report reflects that the Veteran complained of back pain that was out of control. The Veteran underwent a Social Security Disability Examination in July 1998. His chief complaint was chronic low back. He stated that he last worked in November 1996 as a truck driver. He reported that he could perform basic activities of daily living, light household chores, and he could attend church. Upon examination, his gait was slow and antalgic, favoring the right. He stated that he could only squat and rise from 50 percent of the expected distance. He also stated that he was unable to walk on his heels or toes secondary to pain and weakness. The examiner diagnosed the Veteran as having a history of chronic low back pain probably secondary to degenerative disc disease. He also noted inconsistent physical findings. The Veteran also underwent a Functional Capacity Assessment in July 1998. The examiner "wrote up a medium RFC [residual functional capacity] even though there are 'inconsistent physical findings.'" He restricted the Veteran from returning to his past work. The SSA denied the Veteran's claim for disability benefits. It found that the evidence showed some restrictions that prevented him from performing past work as a truck driver as was described by the Veteran. The SSA, however, found that his restrictions did not preclude him from performing that type of work as it is normally performed in the national economy. Outpatient VA records reflect that the Veteran underwent an initial pain assessment in April 2001. He indicated that he had pain in his low back, neck, shoulder, and feet. He stated that the impact of the pain was severe in terms of his ability to do household chores, walk, sleep, have a social life, remain employed, ride in cars, and drive. An October 2001 VA outpatient treatment report reflects that the Veteran was to be prescribed a TENS unit and would need a pain clinic referral. In December 2001, he was prescribed Percocet. The Veteran submitted numerous lay statements (most of them dated October 2001). The statements recounted instances where the Veteran was bedridden and unable to stand due to back pain. In a November 2001 SSA Disability Report, the Veteran stated that he stopped working because he was unable to pass a Department of Transportation physical and because he knew he was in too much pain to work. A March 2002 Report of Contact with disability specialist M.M. reflects that there is no objective evidence of severe limitation of the Veteran's back; however, M.M. noted that pain is the primary problem that limits the Veteran's activities. She noted that the allegations of pain are "partially credible as there is mild impairment of the lumbar spine as shown on the MRI." The Veteran submitted a July 2002 correspondence from a former employer who stated that the Veteran was employed by Orkin Pest Control from February 2000 to June 2000. The employer (service manager A.H.) stated that the Veteran began in the termite division, but soon transferred to the pest control division because it required less manual labor. The Veteran, however, continued to complain of extreme pain in his low back. A.H. stated that after four months, frequent and unbearable pain caused the Veteran to leave the company. The Veteran underwent a VA examination in October 2002. The examiner noted muscle tenderness throughout the thoracolumbar regions and of the upper trapezius, and prominent musculature especially of the right and lower thoracolumbar area. The Veteran had no range of motion in all planes secondary to pain. The examiner's impression was that of chronic low back pain/spondylosis with prominent myofascial and neuropathic features. In January 2003, the SSA rendered a fully favorable decision. It found that the Veteran had the following impairments that were considered "severe" under the Social Security Act and Regulations: degenerative disk disease lumbar spine; lumbar spondylosis with prominent myofascial and neuropathic features; and adjustment disorder with mixed anxiety and depressed mood, chronic, severe. It found that due to the Veteran's impairments "including moderately severe chronic disabling pain, [the Veteran] is unable to perform the exertional sitting, standing, walking, and lifting requirements of even more than sedentary light medium work or sustain a full work week." The SSA found the Veteran to be disabled effective July 1, 2000. The Veteran underwent a VA examination in April 2003. On examination, he had marked limitation of the lumbar spine. He could only achieve flexion to 20 degrees and extension to 0 degrees. There was also marked muscles spasm and tenderness over the lumbosacral muscles. Reflexes, motor and sensory examinations were normal. He was diagnosed with low back pain syndrome, primarily myofascial with moderate loss of function due to back pain; no significant degenerative disk disease or degenerative joint disease or spinal stenosis. The examiner noted that the Veteran's symptoms far outweigh the objective signs except that he did have severe muscle spasm. In its April 2012 Remand, the Board found that "there is some evidence that the Veteran was unemployable due to his service-connected back disability prior to March 2, 2004." This evidence included October 2001 hearing testimony that his service-connected back disability became so severe in 1996, that he could not drive anymore. The Veteran reported excruciating pain and flare-ups during which the lower part of his body would go completely numb, he would lose body functions, and he would be bedridden for weeks. Additional evidence included February 2012 hearing testimony that he lost his job as a truck driver due to his service-connected back disability and that he lost his job at a pest control company in early 2000 due to his back disability. Based on evidence that the Veteran was unemployable due to his service-connected back disability prior to March 2, 2004, the Board found that the claim should be referred to VA's Director of Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b), for the period prior to March 2, 2004. In January 2013, the Acting Director of Compensation and Pension Service initially acknowledged that the SSA found that the Veteran has been disabled since July 1, 2000, due to degenerative disc disease, lumbar spine; lumbar spondylosis with prominent myofascial and neuropathic features; and adjustment disorder mixed with anxiety and depressed mood, chronic severe with an assigned global assessment of functioning score of 42. On the following page however, the Acting Director stated that the Veteran "is in receipt of Social Security disability benefits based on his non-service connected mental disability." This latter finding is erroneous. The Veteran noted the erroneous finding. In his May 2013 Brief, he argued that the error casts serious doubts on the quality and probative value of the report's overall findings. The Board agrees. Additionally, the Acting Director stated that at a VA examination dated August 3, 2004, the Veteran reported that he would be able to work in a sedentary environment with his back disability, but that he could not work due to his psychiatric disability. The Board was not unable to locate a VA examination report dated August 3, 2004; nor was it able to find any reference to this examination in any of the statements of the case or supplemental statements of the case. The Board reviewed the VA examination reports dated April 2003, September 2004, and February 2006, but these reports do not reflect that the Veteran reported that he could work sedentary employment. Further, the Veteran's TDIU award preceded August 3, 2004. Medical examiners have noted that the physical findings are somewhat at odds with the Veteran's subjective complaints of pain. Consequently, it is difficult to determine when it became factually ascertainable that the Veteran's service-connected back disability became so severe that it rendered it impossible for the Veteran to follow a substantially gainful occupation. Disability specialist M.M. found that despite the fact that there was no objective evidence of severe limitation of the Veteran's back, pain was the primary problem that limited the Veteran's activities. Moreover, she found that the Veteran's allegations of pain were "partially credible." Additionally, the Veteran's former employer (A.H.) stated that the Veteran worked for Orkin Pest Control from February 2000 to June 2000. He further stated that despite the fact that accommodations were made to move the Veteran from the termite division to the less strenuous pest control division, the Veteran was unable to work due to extreme back pain. The Board finds the statements from M.M. and A.H. to be highly credible and probative towards determining when the Veteran's service-connected back pain became so severe that it became impossible for the Veteran to follow a substantially gainful occupation. In giving the benefit of the doubt to the Veteran, the Board finds that as of July 1, 2000, the Veteran's service-connected back disability became so severe that it became impossible for the Veteran to follow a substantially gainful occupation. This is consistent with the SSA's finding. Moreover, the Board notes that soon thereafter, he underwent an initial pain assessment, was prescribed a TENS unit, and was prescribed Percocet. The Board finds that prior to July 1, 2000, it was not factually ascertainable that it was impossible for the Veteran to follow a substantially gainful occupation. The Board recognizes that a November 1997 outpatient treatment report states that the Veteran complained of back pain that was out of control; however, at a July 1998 SSA disability examination, he reported that he could perform basic activities of daily living, light household chores, and he could attend church. Additionally, at a July 1998 Functional Capacity Assessment, the examiner determined that the Veteran had medium residual functional capacity. He restricted the Veteran from returning to his past work; but he did not find that that it became impossible for the Veteran to follow a substantially gainful occupation. The Board finds that if the Veteran could perform light household chores and activities of daily living, then it would not have been impossible to follow a substantially gainful occupation. Consequently, following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against a finding of entitlement to a TDIU prior to July 1, 2000. There is no persuasive evidence of record demonstrating or suggesting that the Veteran was unemployable prior to July 1, 2000, as a result of his service-connected disability. (CONTINUED ON NEXT PAGE) ORDER Entitlement to TDIU with an effective date of July 1, 2000 (but no earlier) is granted. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs