Citation Nr: 1324692 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-11 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date prior to September 7, 2011 for the grant of a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1976 and from January to March of 1991, with additional service in the Tennessee Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. An appeal as to the issue of entitlement to higher evaluations for a service-connected cervical spine disorder was perfected, and the Veteran appeared for a video conference hearing in June 2011. Subsequent to that hearing, in June 2012, the Board disposed of the increased evaluation issue while simultaneously finding that the appeal encompassed a claim of entitlement to TDIU, which was remanded back to the agency of original jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). In an April 2013 rating decision, the RO granted entitlement to TDIU as of September 7, 2011. In the same month, the RO issued a Supplemental Statement of the Case as to the issue of entitlement to an effective date prior to September 7, 2011 for the grant of TDIU. It is that issue which remains on appeal and will be addressed in this decision. 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). FINDINGS OF FACT 1. This appeal arose from a grant of a June 14, 2005 claim for service connection for degenerative joint disease of the cervical spine; the appeal concerned the assigned rating for the disability, and the TDIU claim was remanded in view of Rice in June 2012. 2. There is no evidence prior to September 7, 2011 establishing that the criteria for entitlement to TDIU had been met; rather, he was employed on a full-time basis up until that date. CONCLUSION OF LAW The criteria for an effective date prior to September 7, 2011 for the grant of TDIU have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, as noted above, the initial TDIU claim was remanded by the Board in June 2012 in accordance with Rice. The RO issued a 38 C.F.R. § 3.159(b) notice letter in November 2012 addressing this claim. The TDIU claim was granted in April 2013, with the effective date issue arising on account of the assigned September 7, 2011 effective date. This issue, addressed in an April 2013 Supplemental Statement of the Case, is a "downstream" issue not requiring separate 38 C.F.R. § 3.159(b) notification. See VAOPGCPREC 8-2003 (Dec. 22, 2003) (a Statement of the Case was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue). Accordingly, there are no deficiencies of notification in this case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained private, VA, and service treatment records of the Veteran. He has been afforded multiple VA examinations, most recently in February 2013. There is no indication of additional medical evidence or employment records that need to be obtained. In December 2012, the Veteran confirmed that he had provided all relevant evidence in conjunction with the appeal. Accordingly, VA's duty to assist the Veteran has been fulfilled. Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In cases involving increases, including TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). 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. 38 U.S.C.A. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 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. 38 C.F.R. § 3.157(a) provides that the effective date of pension or compensation benefits will be the date of receipt of the claim or the date entitlement arose, whichever is later. Acceptance of a report of examination or treatment meeting the requirements of 38 C.F.R. § 3.157 as a claim for increase is subject to the payment of retroactive benefits from the date of a report or for a period of one year prior to the date of receipt of the report. If a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital. For reports prepared by a non-VA hospital where the veteran was maintained at VA expense, the date of admission to the hospital is accepted as the date of receipt of claim if VA maintenance was authorized prior to admission. 38 C.F.R. § 3.157(b)(1). For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2-3). Under VA laws and regulations, TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Furthermore, a total disability rating may be assigned where the combined rating for a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Also, all cases of veterans who are unemployable by reason of service-connected disabilities but fail to meet the standards set forth in 38 C.F.R. § 4.16(a) are to be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. See 38 C.F.R. § 4.16(b). In this case, the Veteran's earliest claim for VA compensation benefits, concerning service connection for bilateral hearing loss, was received on March 31, 2005. In June 14, 2005, the Veteran's claim for service connection for "joint pain" was received. In view of subsequent correspondences referencing the cervical spine, the RO determined that June 14, 2005 was the appropriate date of the grant of service connection for a cervical spine disability, as the date of claim. The initial ratings assigned for that disability were the subject of the June 2012 Board decision, in which the Board also remanded the TDIU claim to the RO in light of Rice. The Board will next address when entitlement to TDIU arose. First, the Board has considered the Veteran's service-connected disabilities. These include degenerative joint disease of the cervical spine, rated as 40 percent disabling from June 14, 2005; steroid-induced diabetes mellitus associated with degenerative joint disease of the cervical spine, rated as 20 percent disabling from February 27, 2008; peripheral neuropathy of the right and left lower extremities, associated with steroid-induced diabetes mellitus, both rated as 10 percent disabling from August 13, 2008 and as 20 percent disabling from February 5, 2013; bilateral hearing loss, rated as 10 percent disabling from March 31, 2005; tinnitus, rated as 10 percent disabling from June 14, 2005; peripheral neuropathy of the right and left upper extremities, associated with steroid-induced diabetes mellitus, both rated as 10 percent disabling from August 13, 2008; coronary artery disease and coronary artery bypass associated with steroid-induced diabetes mellitus, rated as 20 percent disabling from February 27, 2008, 90 percent disabling from October 29, 2012, and zero percent disabling from February 1, 2013; erectile dysfunction associated with steroid-induced diabetes mellitus, rated as zero percent disabling since June 25, 2009; and bilateral cataracts associated with steroid-induced diabetes mellitus, and dysphagia associated with degenerative joint disease of the cervical spine, both rated as zero percent disabling from October 15, 2009. Consequently, the Veteran's combined evaluations have been 10 percent beginning on March 31, 2005; 50 percent beginning on June 14, 2005; 70 percent beginning on February 27, 2008; 80 percent beginning on August 13, 2008; 100 percent from October 29, 2012; and 80 percent beginning on February 1, 2013. See 38 C.F.R. §§ 4.25, 4.26. The combined evaluation did not meet the criteria for consideration on a schedular basis under 38 C.F.R. § 4.16(a) for the period beginning on March 31, 2005 but did met such criteria beginning on February 27, 2008. Of particular importance in the determination of whether the criteria, both schedular and extra-schedular, for TDIU had been met is the question of the Veteran's employment status prior to September 7, 2011. In fact, a review of the claims file reflects that the Veteran was employed full-time prior to September 7, 2011. Notably, during a July 2008 VA spine examination, he reported working as a manager for traffic control in county government, with "a lot of pain that bothers him at work, but he is able to do his work." In a November 2008 Notice of Disagreement, he indicated that he wanted an increase to 100 percent, while at the same time noting that he was working and taking more medication than prescribed to control pain because it allowed him "to work and not take off sick." During an August 2009 VA diabetes mellitus examination, he reported working 10 hours per day and walking about five miles per day at work. During a March 2010 VA spine examination, the Veteran reported working in the field of air traffic control for the same county government as in July 2008; he noted that he had a lot of pain that did bother him at work and that he was able to do his work, although the pain did limit his endurance in regard to his job. A July 2010 VA heart examination indicates that he remained employed in the same job, full-time for five to ten years, and had lost approximately two weeks from work in the past twelve months "to have stent placements and not feeling well." Of particular note to the Board is a May 24, 2011 letter from the Veteran's supervisor in county government indicating that the Veteran had absences most often due to pain from his neck injury "and other service[-]connected illnesses contracted while in the military." The Veteran at that point used a combination of sick leave, vacation, and "flex time" for hospital stays and office visits. The supervisor further noted that the Veteran was absent for an unusual amount of time for a man of his age and had been in the hospital both as an inpatient and outpatient over ten times with various service-related conditions over his eight-year employment period at that office. While the supervisor further noted that the Veteran was "off work almost constantly for office visits," this statement contains no indication that the Veteran's frequent absences resulted in any sort of reduction of full-time status, demotion, or other loss of income, let alone a reduction of income commensurate to "marginal employment." The Veteran provided further detail as to his then-current employment situation during his June 2011 hearing and in an accompanying lay statement from the same month. During the hearing, he noted that his boss felt that he was taking "an exorbitant amount of time" off for medical treatment, although he tried to use flex time if he could and worked "a lot of extra time." He later expressed the concern that he did not think that he would be able to hold on to his job. In the lay statement, he asserted that he could not concentrate due to pain and medications and that he had gotten his supervisor to do driving for him. He noted that he lived "on a day to day basis wondering when I will be forced to quit work due to my poor work, health and the strong medication I am taking." Subsequently, in an April 2012 statement, the Veteran confirmed that he was no longer working "[d]ue to my poor health condition of service[-]connected illnesses." In December 2012, the RO received the Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In this application, the Veteran confirmed working at his county government job from July 2000 to September 6, 2011 and indicated that he had completed four years of college. He indicated that he had worked 40 hours per week and had lost 80 work hours from illness. He noted that his highest gross earnings per month were $5,296.24, with the most he ever earned in one year being $63,554.84. Notably, he cited to September 7, 2011 as the date he became too disabled to work. Overall, the Veteran's own statements and other evidence reflect that he worked full-time for the same county employer without substantial absences (i.e., no more than two weeks per year) prior to September 7, 2011, and the fact that he was employed full-time up until that date weighs strongly against his claim. That said, the Board has considered whether the nature of his employment was "marginal," so as to support a TDIU claim notwithstanding his status as an employee. To this end, in the November 2012 notice letter VA requested that, if the Veteran had to use sick leave or leave without pay due to service-connected disorders, he should send a copy of employment records showing the amount of time that was used. The Veteran, however, provided no such documentation. Rather, in a December 2012 statement, the Veteran stressed the effect of his service-connected disabilities on his ability to work and reported that he was laid off on September 7, 2011 due to his service-connected illnesses. The Veteran's assertions, along with reports of VA examinations conducted in February 2013, support the grant of TDIU as of the September 7, 2011 date of unemployment. The evidence of record dated prior to that date, however, indicates that the Veteran was working full-time and did not have a documented record of lost pay due to absences from work. There is no suggestion that he was employed in a capacity that could be described as "marginal" 38 C.F.R. § 4.16(a), nor has he presented medical documentation to suggest this status. To this end, the Board must emphasize that the Veteran and his representative have in fact presented no lay argument whatsoever specifically asserting that the assigned effective date of September 7, 2011 was incorrect. The Veteran did not directly respond in any manner to the April 2013 rating decision and corresponding Supplemental Statement of the Case setting forth this date as the effective date, and his representative, in a June 2013 written brief presentation, specified that no additional argument was being submitted at that time. Indeed, in his December 2012, VA Form 21-8940, the Veteran cited to September 7, 2011 as the date he became too disabled to work. In other words, the Board need not analyze the credibility and competency of the Veteran's assertions in support of the present appeal, as there have actually been no such assertions. In short, there is no evidence, medical or otherwise, to support the finding that the criteria for entitlement to TDIU, under 38 C.F.R. § 4.16, were met prior to September 7, 2011. Accordingly, as entitlement to this benefit did not arise before September 7, 2011, the claim for an earlier effective date for the grant of TDIU must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date prior to September 7, 2011 for the grant of TDIU is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs