Citation Nr: 1325181 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 12-02 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether the Veteran is competent for Department of Veterans Affairs (VA) benefits purposes to handle disbursement of funds under the provisions of 38 C.F.R. § 3.353. 2. Entitlement to an effective date prior to January 16, 2008 for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Anthony F. Watson, Power of Attorney ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active military service from October 1941 to November 1943. The issue of whether the Veteran is competent for to handle disbursement of VA benefit funds comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issue by the VA Regional Office (RO) in Baltimore, Maryland, which determined that the Veteran was not competent to handle disbursement of funds. The issue of entitlement to an earlier effective date for the grant of TDIU comes to the Board on appeal from a July 2011 rating decision issued by the VA RO in Baltimore, Maryland, which granted a TDIU and assigned an effective date of January 16, 2008. In his December 2012 substantive appeal addressing the competency issue, the Veteran requested a Board hearing. However, in an April 2013 substantive appeal addressing the earlier effective date issue, he indicated that he did not want a hearing. Thus, in June 2013, the Board sent notice to the Veteran requesting clarification as to whether he wanted a Board hearing. Later that month, the Veteran indicated that he did not wish to appear at hearing. As such, the Veteran's hearing request has been withdrawn and the Board will decide the issues based on the evidence of record. The Board further notes that the Veteran submitted additional evidence to the Board that had not been considered by the RO. In a June 2013 statement, the Veteran waived RO consideration of this evidence. As such, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal that were not considered by the RO. 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. The competent medical evidence of record establishes that, due to his major depression and cognitive disorder, the Veteran lacks the mental capacity to handle disbursement of VA funds. 2. Even considering a September 1985 statement with accompanying June 1985 medical opinion as a claim for TDIU, the claim was implicitly denied by the RO in a November 1985 rating decision; the Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. 3. The record includes no other pending claims for increased ratings or unresolved claims, whether formal or informal, for TDIU prior to January 16, 2008. 4. The RO received a claim of entitlement to service connection for a psychiatric disability on January 16, 2008, which was awarded effective the same date (date of claim). 5. The schedular criteria for TDIU were met on January 16, 2008, when the Veteran's psychiatric disability was rated 70 percent disabling. 6. A TDIU was awarded due to the Veteran's service-connected psychiatric disability; and thus, it was not factually ascertainable that the Veteran was unemployable due to his service-connected psychiatric disability prior to January 16, 2008. CONCLUSIONS OF LAW 1. The Veteran is not competent to handle the disbursement of VA funds. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.353(a) (2012). 2. The criteria for an effective date prior to January 16, 2008, for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157, 3.400, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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 and 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. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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). Initially, the Board believes it arguable that the notice provisions of VCAA do not apply to 38 C.F.R. § 3.353, determination of incompetency and competency. VCAA applies to "claims" for benefits. In the present case, there does not appear to be a claim for benefits. In fact, there is no question that the Veteran is entitled to VA compensation at the highest schedular rate. The sole question is his competency to handle the VA benefits that he is entitled to for his service-connected disabilities. Congress has charged VA to consider the interests of a benefit recipient when making payments. 38 U.S.C.A. § 5502. Again, the question does not involve entitlement to benefits, but rather the manner those benefits will be paid. As such, the Veteran in this case is not a claimant for benefits. Regardless, a review of the record shows that there has nevertheless been substantial compliance with VCAA notice provisions and that the Veteran has been informed of the criteria applied in reaching the determination made by the RO. In this case, in the July 2011 rating decision, the RO granted a TDIU, and proposed a finding of incompetency under 38 C.F.R. § 3.353. In a July 2011 letter, the Veteran was informed that a proposal was being made to rate him incompetent for VA purposes. This letter predated the September 2011 rating decision which determined that the Veteran was not competent to handle disbursement of funds. The VCAA letter notified the Veteran that the decision would be based on the evidence of record, and any additional evidence submitted by the Veteran. It also notified the Veteran of his right to request a personal hearing. With respect to the claim for an earlier effective date for a TDIU, the claim arises from an appeal of the initial effective date following the grant of a TDIU. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and 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. Next, VA has a duty to assist the Veteran in the development of the claims. 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 VA has complied with all assistance provisions of VCAA. The evidence of record contains private treatment records, VA outpatient treatment records and VA examination reports. There is no indication of relevant, outstanding records which would support the issue of competency. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). Additionally, the evidence of record contains a VA psychiatric examination conducted in March 2011. The examination report obtained contains sufficient information to decide the issue of competency. See Massey v. Brown, 7 Vet. App. 204 (1994). Relevant to the Veteran's claim for an earlier effective date, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's claim for a TDIU. However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his claim for service connection for a psychiatric disability (upon which his TDIU is based) as well as the date the Veteran met the schedular criteria for a TDIU, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). The Board recognizes that the Veteran has asserted that he was awarded Social Security Administration (SSA) disability benefits in 1986, which is when he was 65 or 66 years of age. There are no records from SSA contained in the claims file. However, the Board notes that, at age 65, an individual born before 1937 (as is the case here) is entitled to full retirement benefits from SSA. Moreover, any previously awarded SSA disability benefits convert to SSA retirement benefits at retirement age. Therefore, while the Veteran alleges that he applied for disability benefits in 1986, such would have been processed as retirement benefits due to his age. Moreover, the record reflects that the Veteran's official retirement date was April 30, 1986, and, as he was working full-time prior to date, he would not have qualified for SSA disability benefits prior to such date and, assuming he applied after such date, he would have been age 65 or 66 (as his birthday is in May) and he would have been awarded retirement benefits rather than disability benefits. Therefore, the Board finds that it is not necessary to obtain any documents from SSA as they are irrelevant to the issues on appeal. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). Competency For VA purposes, a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. 38 C.F.R. § 3.353(a). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. §§ 3.353(d), 3.102. Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will not make a determination of incompetence without a definite expression regarding the question by the responsible medical authorities. 38 C.F.R. § 3.353(c). Determinations as to incompetence should be based on all the evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization, and the holding of incompetence. Id. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and the right to a hearing. 38 C.F.R. § 3.353. In pertinent part, service connection is in effect for major depression with cognitive disorder, rated 70 percent disabling, effective January 16, 2008, and the Veteran has been awarded a TDIU, effective the same date. The Veteran was afforded a VA psychiatric examination in March 2011 to evaluate the Veteran's employability. The Veteran's claims file and electronic records were reviewed. It was observed that, since the last evaluation in March 2008, the Veteran's major depression had worsened. The frequency of symptoms was daily, the duration was constant, and the severity was high. The examiner found that the Veteran was significantly conflicted and unemployable as a result of his service-connected conditions. In pertinent part, the Veteran had poor attention and concentration. His thought processes were slow and he communicated in short sentences. His behavior was adequate and personal hygiene was well-kept. The Veteran was accompanied by his representative, who is his nephew and the Veteran's Power of Attorney. It was noted that he was the payee for the Veteran. The Veteran had significant restrictions on daily activities and could not venture out independently. He required 24-hour supervision. It was noted that he had concentration and memory problems. He could not plan well for a future event. Thus, the examiner determined that the Veteran was not considered competent to manage VA benefits. The examiner further noted that the Veteran had multiple mental disorders, including a cognitive disorder that was considered moderately severe and had been worsening over the past two years. The Veteran's cognitive disorder was considered to be intrinsically connected to his major depression. On physical examination, the Veteran was adequately groomed and behavior was appropriate. However, speech was not spontaneous and, while productive, it was slow. There were no hallucinations or delusions. Affect was appropriate and thought processes were logical and coherent, but required goal redirections. It was again noted that the Veteran's cognitive functions were abnormal. Concentration and attention were moderately impaired. He was fully oriented to person, but not place or purpose. He had difficulties recalling time and problems remembering past presidents. In sum, the Veteran exhibited mild to moderate cognitive deficiencies as well normative deficiencies of moderate severity in immediate and recent memory. Remote memory was better preserved and insight and judgment were fair. Based on these examination findings, in July 2011, the RO proposed a finding of incompetency and gave the Veteran the opportunity to submit evidence as well as obtain a personal hearing. In July 2011 correspondence, the Veteran and his representative, who is the Veteran's nephew, did not argue against the finding of incompetency, but rather requested that the nephew be appointed as fiduciary. A subsequent August 2011 letter from a private attorney requested information on how to have the nephew appointed as fiduciary. As the Veteran simply requested his nephew being appointed as a fiduciary and failed to submit any additional evidence, in September 2011, the RO determined that the Veteran was not competent to handle disbursement of funds. Subsequently, the RO Fiduciary team appointed another fiduciary. Since this appointment, the Veteran's representative has asserted in statements of record that he does not believe that the fiduciary is handling the Veteran's benefits appropriately. Moreover, in support of the Veteran's claim, a December 2012 private opinion from a neurologist was submitted. The examiner described the Veteran's physical problems and also noted episodes of depression in the past, but not current. He observed that the Veteran's nephew was his main caretaker. The Veteran was oriented times three and mini-mental status was 25. The impression was no prominent cognitive abnormalities. The examiner believed that the Veteran could manage any benefits assigned. He had pulmonary problems and arthritis that severely limited him, but there was nothing on examination that looked like dementia or stroke disease. The Board first finds that proper administrative procedures were followed in proposing the finding of incompetency and furnishing the Veteran proper notice and affording an opportunity to submit evidence and request a hearing. Turning to consideration of the underlying question, the Board acknowledges the Veteran's sincere belief that he is competent to handle his own VA funds. However, it is clear from the regulatory provisions of 38 C.F.R. § 3.353 that the Board must also give consideration to medical evidence. In the present case, after examining the Veteran to assess the severity of his psychiatric disorder and reviewing the claims folder, the March 2011 VA examiner clearly determined that the Veteran's best interests would not be served by his handling of his VA funds. The Board recognizes the December 2012 private opinion that indicated that the Veteran could manage any benefits assigned; however, the physician provided no rationale for this opinion, provided no information regarding any course of treatment rendered, and it is apparent that he did not review the Veteran's claims folder, including the March 2011 VA examination report. The VA examination clearly reflects that the Veteran cannot meet his own needs and requires constant care. He could not plan well for a future event. Moreover, the finding of incompetency at this examination was primarily based on the Veteran's psychological disorder, which was intertwined with his cognitive disorder. The private examiner did not thoroughly address the Veteran's psychiatric disorder except to indicate no current depression. However, this assessment seems inaccurate given the long-standing history of psychological problems documented in the Veteran's VA treatment records. Moreover, the VA examiners assessments are consistent with the Veteran's current disability rating of 70 percent with a TDIU for his psychiatric disorder. Thus, the Board must find that the VA examination has more probative value than the December 2012 private opinion. The Board also finds it significant that the Veteran and his representative did not appear to disagree with the proposal of incompetency until another fiduciary was appointed instead of the nephew. The initial statements following the proposal of incompetency, which simply requested that the nephew be appointed fiduciary appear to conflict with subsequent statements arguing that the Veteran is competent; thereby diminishing the credibility of these subsequent statements. See Caluza v. Brown, 7 Vet. App. 498 (1995). Rather, the nephew appears to be more upset with how the current fiduciary is managing the Veteran's benefits, which is a question outside of the jurisdiction of the Board. Moreover, the Veteran and his nephew cannot be considered competent to render a medical opinion regarding the Veteran's own competence. To the extent that the question of competency is medical in nature, evidence concerning competence must be furnished by trained medical examiners. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Veteran's and his nephew's assertions are also outweighed by the March 2011 medical examination. While the Board appreciates the Veteran's sincere belief that he is able to handle his VA funds, the Board finds the medical evidence of incompetency to be clear and convincing. The Board therefore concludes that the evidence is against a finding that the Veteran is competent for VA disbursement purposes. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Earlier Effective Date for TDIU The Veteran is also seeking an earlier effective date for the award of TDIU. Specifically, he claims that the appropriate date should be the date of his retirement approximately in April 1986. A TDIU claim qualifies as a claim for increased disability compensation. The Court determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Law and regulation also specifically provide 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 any application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o). If 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 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, 10 Vet. App. 125 (1997). Significantly, in Norris, supra, the Court held that when an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of 38 C.F.R. § 4.16(a), and there is evidence of current service-connected unemployability in the claims file, evaluation of that rating increase must also include evaluation of a reasonably raised claim for a TDIU rating. The Federal Circuit has also held that once a Veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based on individual unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Further, a more recent decision by the Federal Circuit indicated that an appeal seeking an earlier effective date for benefits is sufficient to raise the issue of a Veteran's entitlement to an earlier effective date for his TDIU award, even if a veteran did not explicitly raise the issue, where the veteran presented persuasive evidence of his unemployability. See Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). In sum, the Federal Circuit in Comer found that under Roberson, a claim for TDIU was not a free-standing claim that must be pled with specificity, rather, it was implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating. Further, in May 2009, the Court held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.159(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.159(b)(2). A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie, 25 Vet. App. at 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id. In making such determinations, the Board must consider all of the evidence, including that received prior to previous decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). Further, TDIU may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). This means that in exceptional cases, where there evaluations provided by the rating schedule are found to be inadequate, a TDIU claim may be referred for extraschedular consideration. 38 C.F.R. § 3.321(b). The Board does not have jurisdiction to assign an extraschedular rating in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Rather, consideration of whether an extraschedular rating is assignable must be referred to the RO, who requests such consideration by the Under Secretary for Benefits or by the Director of Compensation and Pension Services. Entitlement to a total rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for the following disabilities: major depression with cognitive disorder, evaluated as 70 percent disabling, effective January 16, 2008; heart condition, evaluated as 10 percent disabling, effective April 1, 1946; tinnitus, evaluated as 10 percent disabling, effective January 16, 2008; and bilateral hearing loss, evaluated as noncompensable from January 16, 2008 to November 2, 2009, and as 10 percent disabling thereafter. As of January 16, 2008, the Veteran had a total combined rating of 80 percent. Thus, as of that date, the Veteran met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, prior to January 16, 2008, the Veteran did not meet the schedular criteria for a TDIU as he was only rated as 10 percent disabling for his heart disability. Again, the Veteran has primarily asserted that the effective date of TDIU should be the date he retired from employment. Prior to his retirement, the record shows that the Veteran was employed as a nursing assistant at a VA Medical Center (VAMC). According to a VAMC personnel record, it appears that he retired approximately in April 1986. In support of this contention, the Veteran has primarily relied on a June 7, 1985 medical opinion from a VA medical doctor, which stated that because of the Veteran's tenuous cardiac status, and need for further rigorous work-up, he had been advised to retire as his stressful, strenuous job could ultimately contribute to the problem. The Veteran asserts that he retired shortly thereafter based on his doctor's recommendation. In pertinent part, by way of background, the Veteran filed a claim for an increased rating for his service-connected heart disability in May 1985. In a June 1985 determination, the RO continued the Veteran's current 10 percent disability rating. He subsequently filed a statement in September 1985 indicating that he had been advised to retire and submitted the June 1985 letter from his doctor. The Veteran underwent a VA examination in September 1985. It was noted that the Veteran was on sick leave and then planned to retire once his sick leave ran out. After examining the Veteran, the examiner diagnosed status post episodes of paroxysmal atrial tachycardia (PAT), apparent good control on Verapamil with no episodes of PAT for past half year. There was no evidence of other cardiac pathology. EKG showed waves in lead III of questionable significance. A contemporaneous chest x-ray showed no evidence of cardiopulmonary process. Thus, based on the receipt of the additional evidence, the RO reconsidered the Veteran's claim for an increased rating in a November 1985 rating decision, but again continued the 10 percent rating. As discussed further below, the Veteran did not initiate an appeal to this determination and new and material evidence was not submitted within one year. As such, the November 1985 rating decision became final. See 38 U.S.C.A. § 7105(c). Subsequent submissions in 1998 and 1999 merely addressed the Veteran's appointment of his sister as his power of attorney and arranged for direct deposit of his benefits in another account. Nothing in these submissions indicates any intention of filing for a new claim of any sort. Moreover, a review of VA treatment records prior to January 16, 2008 do not show any increase in severity of the Veteran's heart disability that could reasonably be construed as a claim for an increased rating. The next submission is the Veteran's January 16, 2008 claim for service connection for a psychiatric disability and an increased rating for his heart disability. In pertinent part, in a September 2008 rating decision, the RO granted service connection for major depression secondary to heart condition and assigned a 30 percent disability rating, effective the date of claim. The RO also continued the 10 percent evaluation for the Veteran's heart disability. In a subsequent September 2009 rating decision, the RO increased the Veteran's disability rating for his major depression from 30 percent disabling to 70 percent disabling, effective January 16, 2008. In the July 2011 rating decision, the RO granted a TDIU, effective January 16, 2008, finding that, while the Veteran's other service-connected disabilities of hearing loss and heart disability did not affect his employability, his service-connected major depressive and cognitive disorder symptoms were severe enough to effect his ability to maintain and sustain substantially gainful employment. The RO's decision to grant a TDIU was primarily based on the March 2011 VA psychiatric examination which determined that the Veteran was unemployable due his service-connected psychiatric condition. Importantly, the remaining medical evidence at that time did not show that the Veteran was unemployable due to his other service-connected disabilities. The March 2011 examination for the heart showed no ischemic heart disease and gave a diagnosis of arrhythmia, benign, asymptomatic. In other words, the Veteran was not experiencing any symptoms with respect to his service-connected heart disability. The examiner indicated that the Veteran was unemployable since he had to wear a gastrostomy tube, which is not related to any service-connected disorders. Likewise, the March 2011 audiological examination indicated that hearing loss could impact daily communication, but made no finding of unemployability due to the Veteran's service-connected hearing loss and tinnitus. The Board also observes that previous examinations in March 2008 did not indicate that the Veteran was unemployable due to his other service-connected disabilities. Importantly, the March 2008 heart examination determined that there was no diagnosed heart condition and the Veteran was not on any medication for his heart. Initially, with respect to the Veteran's assertion that the effective date should be his date of retirement, the Board observes that the September 1985 statement by the Veteran indicating that he had been advised to retire due to his heart disability could be construed as a claim for TDIU. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, the November 1985 rating decision did not expressly address a claim for TDIU. Applicable case law on the question of unadjudicated claims is conflicting. In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit held that where a veteran files more than one claim at a time and the rating decision acts on one claim but not another, the second claim is deemed denied, and the appeal period begins to run. In Ingram v. Nicholson, 21 Vet. App. 232 (2007), however, the Court held that a reasonably raised claim remains pending until there is a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated, or an explicit adjudication of a subsequent claim for the same disability. See also Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (affirming Ingram). In determining whether the Veteran's claim had been previously adjudicated, the key question is whether sufficient notice was provided to the Veteran that would allow him to reasonably understand that he would not be awarded benefits for the disability asserted in his pending claim and thus decide for himself whether to accept the decision or seek redress elsewhere. Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010); see also Adams v. Shinseki, 568 F.3d 956, 965 (Fed. Cir. 2009) ("[T]he implicit denial rule is, at bottom, a notice provision."). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. In the instant case, the November 1985 determination clearly determined that the 10 percent rating for the Veteran's heart disability would be continued in light of the September 1985 VA examination and the fact that he had not had an episode of tachycardia since April 1985. Such decision considered the Veteran's physician's June 1985 statement. Given that an increase for the Veteran's heart disorder was not awarded and that the Veteran did not meet the schedular criteria for a TDIU at that time, a reasonable person would have interpreted the decisions as evidencing VA's intent to dispose of any claim for a TDIU. As such, the Board finds that the any construed claim for a TDIU was implicitly denied in the November 1985 rating decision. Again, as observed above, the Veteran did not express disagreement with the rating decision within one year of his notification of this determination and, as such, the decision became final. Moreover, while additional VA medical records were constructively received within one year of the December 1985 rating decision, those records did not address the Veteran's unemployability or show that his service-connected heart disability had worsened such that a higher evaluation was warranted. Specifically, treatment records dated in November 1985, May 1986, November 1986 and May 1987 all indicated that the Veteran was doing well and his heart condition was stable. Thus, the Board finds that the records were not material to the underlying claim. That is, the medical reports, by themselves or when considered with the previous evidence of record, did not relate to an unestablished fact necessary to substantiate a claim for an increased rating or for TDIU. Accordingly, the Board finds that the additional evidence was not new and material under the provisions of 38 C.F.R. § 3.156(b), for the purposes of establishing a pending claim. Again, prior to January 16, 2008, the Veteran was only service-connected for his heart disability, which was rated as 10 percent disabling. As such, he did not meet the schedular criteria for a TDIU. Nevertheless, assuming the Veteran did have a pending claim, there was no evidence of record prior to January 16, 2008 to demonstrate that the Veteran's service-connected heart disability was of such a severity so as to require referral to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU pursuant to 38 C.F.R. § 4.16(b). While there is evidence in the claims folder that shows that the Veteran was unemployed, such evidence did not show that the Veteran was unemployable solely due to his service-connected heart disability. In this regard, although the June 1985 opinion indicated that the Veteran was advised to retire, this letter still did not make a clear finding that the Veteran was rendered unemployable due solely to his heart disability. Rather, the letter only indicated that his current job was too stressful and "could" ultimately contribute to the problem. However, it did not show that he was unable to maintain substantially gainful employment in a less stressful environment. Significantly, in contrast to the opinion, the September 1985 VA examination and follow up VA treatment records all showed that the Veteran's heart condition was under good control. Thus, such evidence does not support an assertion that it was factually ascertainable that a TDIU was warranted prior to January 16, 2008 due to his service-connected heart disability. Again, the Veteran has been awarded a TDIU based on his service-connected psychiatric disability. Importantly, as the Veteran did not file a claim for service connection for his psychiatric disability within one year of his discharge from service, the absolute earliest effective date that he may receive is the date that he eventually filed his claim for service connection, which was not until January 16, 2008. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A review of his claims file reveals there is no evidence of a prior claim (formal or informal) of entitlement to service connection for a psychiatric disability before January 16, 2008. Moreover, the Veteran did not meet the schedular criteria for a TDIU until he was awarded service connection for his psychiatric disability, effective January 16, 2008. Thus, as the Veteran's TDIU award was based on his service-connected psychiatric disorder and he was not awarded service connection for this disorder until January 16, 2008, it was not factually ascertainable that the Veteran was unemployable due to a service connected disability until that date. Again, there is no indication from the evidence of record that the Veteran's other service-connected disabilities rendered him unemployable at any point. Moreover, the Board emphasizes that a TDIU is limited to consideration of service-connected disabilities. In sum, there is no evidence showing that the Veteran's service-connected heart disability resulted in significant impairment prior to January 16, 2008, and the record does not show that the Veteran was unable to obtain and retain substantially gainful employment due to a service-connected disability until January 16, 2008, the date he was awarded service connection for his psychiatric disorder and met the schedular criteria for a TDIU. For the reasons set forth above, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to January 16, 2008. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a TDIU due to service-connected disability prior to January 16, 2008. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). ORDER The Veteran is not competent for VA benefits purposes to handle disbursement of funds under the provisions of 38 C.F.R. § 3.353, and the appeal is denied. An effective date prior to January 16, 2008, for the award of TDIU benefits is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs