Citation Nr: 1327904 Decision Date: 08/30/13 Archive Date: 09/24/13 DOCKET NO. 08-15 818 ) DATE AUG 30 2013 On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than April 17. 2001, for the award of a total disability rating due to individual unemployability (TDIU). 2. Entitlement to an effective date earlier than April 17, 2001, for the award of Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO awarded the Veteran entitlement to a TDIU and to DEA benefits, both effective April 17, 2001. The Veteran perfected an appeal as to the effective date for the awards, and the Board remanded the Veteran's case in November 2012 for further evidentiary development and adjudication. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to implement an effective date in 1975 for the award of service connection for a low back disorder and then to re-adjudicate the Veteran's claim for earlier effective dates for entitlement to a TDIU and to DEA benefits. The AOJ subsequently issued a rating decision in which it implemented an award of service connection for the Veteran's low back disorder effective from October 6, 1975, and issued the Veteran a supplemental statement of the case in November 2012 in which it again denied the claims for earlier effective dates. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please note that 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 Veteran filed a claim received by VA in October 1975 concerning service connection for a lumbar spine disorder. 2. The Veteran's claim for service connection for bilateral knee disorders and a left ankle disorder, as well as his claim for increase for a service-connected left knee -2- disorder, was first received by VA on April 17, 2001. This claim was treated as an informal claim for entitlement to a TDIU and to DEA benefits as part and parcel of the Veteran's claim for increase. 3. In a May 2007 rating decision, the Veteran was awarded entitlement to a TDIU and to DEA benefits, both effective April 17, 2001, the date the informal claim for increase was filed. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date earlier than April 17, 2001, for the award of a TDIU are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.340, 3.341, 3.400, 4.16 (2012). 2. The criteria for assignment of an effective date earlier than April 17, 2001, for the award of DEA benefits are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The earlier effective date issue arises from the Veteran's disagreement with the effective date assigned following the award of a TDIU and DEA benefits. Courts have held that, once a claim is granted and 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). No further notice is needed under the Veterans Claims Assistance Act of 2000 (VCAA) (codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and at 38 C.F.R. § 3.159 (2012)). Regardless, in a May 2008 letter, the Veteran was provided with an explanation of how effective dates are assigned. The duties to notify and assist have been met. -3- II. Legal Criteria and Analysis The Veteran contends that the effective date for his award of TDIU should be in November 1998, when he stopped working due to his service-connected disabilities. The Veteran did not file a formal claim for entitlement to a TDIU at that time; however, his claim for service connection for knee and ankle disorders and for an increased rating for a service-connected left knee disability was received by VA on April 17, 2001; this claim was construed as an informal claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for entitlement to a TDIU is part of an increased rating claim when such claim is raised by the record). The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the 1-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(l) (2012) (emphasis added). The applicable statute, 38 U.S.C.A. § 5110(b)(2), and regulation, 38 C.F.R. § 3.400(o)(2), are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase) and are not applicable when a claim is filed and the increase in disability is subsequently ascertainable. See Harper v. Brown, 10 Vet. App. 125 (1997). The phrase "otherwise, date of receipt of claim" in 38 C.F.R. § 3.400(o)(2) provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id. -4- 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.151(a) (2012). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a) (2012). When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c) (2012). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court addressed the issue of entitlement to an earlier effective date in a TDIU claim and pointed out that the applicable statutory and regulatory provisions, properly construed, require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The evidence shows that the Veteran filed a claim for, inter alia, an increased rating for a service-connected knee disorder received by VA on April 17, 2001. Pursuant to Rice, supra, VA treated this claim as an informal claim for entitlement to a TDIU and DEA benefits. Via the May 2007 rating decision, the RO awarded the Veteran, in pertinent part, entitlement to a TDIU and to DEA benefits. The effective date for both awards was April 17, 2001—the date the RO received the informal claim for increase that was also treated as a claim for entitlement to a TDIU. The Board finds that April 17, 2001, is the proper date for entitlement to a TDIU. This is so because the Veteran's informal claim for increase—which serves as a valid informal claim for entitlement to a TDIU under Rice, supra—was received by VA on April 17, 2001. There was simply no formal or informal claim for entitlement to a TDIU raised by the record prior to that date. The Veteran did not file a formal claim for entitlement to a TDIU prior to April 17, 2001, nor does the -5- record support a finding that he made any attempt prior to that date to alert VA to the fact that he had stopped work in November 1998. In so finding, the Board notes that regulation states that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 C.F.R. § 3.400(o)(2); see also 38 U.S.C.A. § 5110(b)(2). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(l). In this case, there is simply no evidence that the Veteran filed a claim for entitlement to a TDIU, or a claim for increase that could be construed as an informal claim for a TDIU, at any point prior to April 17, 2001. That date is the date the informal claim for entitlement to a TDIU was received by VA; there is no earlier date at which an informal claim for increase can be seen to have arisen from the claims file. 38 C.F.R. § 3.400(o)(2); see Rice, supra. In so finding, the Board acknowledges that the Veteran filed a claim for service connection for a back disorder in 1975 that was not properly adjudicated until a January 2013 rating decision. However, the Board notes that no claim for entitlement to a TDIU can arise from a claim of service connection; the Court has made clear that a claim for TDIU is an extension of a claim for increase, not for service connection. See id. Thus, the initial 1975 filing of the Veteran's claim for service connection for a back disorder cannot give rise to an informal claim of entitlement to a TDIU. In reaching this conclusion, the Board acknowledges that at the record supports a finding that the Veteran first became unable to work in November 1998. However, the fact remains that the Veteran's claim for increase was received by the Board on April 17, 2001. This date is more than one year prior to the date on which the Veteran's claim for entitlement to a TDIU was received. Thus, the effective date cannot be the date that entitlement arose, as set forth in 38 C.F.R. § 3.400(o)(2). The law requires that April 17, 2001, is the proper effective date for the assignment of a TDIU, as it is the later date under 38 C.F.R. § 3.400(o). Based on the foregoing, the Board concludes that an effective date earlier than April 17, 2001, for entitlement to a TDIU is not warranted. As the preponderance of the -6- evidence is against the claim for an earlier effective date for a TDIU, the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). For the purposes of entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, the veteran was discharged from service under conditions other than dishonorable conditions and the veteran has a permanent and total service-connected disability. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.807, 21.3021 (2012). In this case, the Board has determined that the proper effective date for the TDIU was no sooner than established by the RO—April 17, 2001. Therefore, there can be no entitlement to DEA benefits prior to that event. In short, because the Board has herein denied entitlement to an effective date earlier than April 17, 2001, for entitlement to a TDIU, there is no basis for assigning an effective date prior to April 17, 2001, for the Veteran's entitlement to DEA benefits. The appeal is denied. ORDER Entitlement to an effective date earlier than April 17, 2001, for the award of a TDIU is denied. Entitlement to an effective date earlier than April 17, 2001, for the award of DEA benefits is denied. J.A.MARKEY Veterans Law Judge, Board of Veterans' Appeals -7-