Citation Nr: 1328159 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-04 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to February 10, 2009, for the award of a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty with the Marine Corps from August 1984 to August 1988 and May 1995 to June 2005 and Army National Guard from January 1992 to May 1992. He had additional service with the Army National Guard from April 1990 to February 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in a December 2008 rating decision the RO granted an increased rating for the Veteran's service-connected left shoulder disability. The Veteran filed a timely notice of disagreement with the rating assigned, but he withdrew it in September 2009, prior to the RO's promulgation of a statement of the case. Therefore, that issue is not on appeal and will not be considered at this time. FINDINGS OF FACT 1. The Veteran is deemed to have submitted a claim for entitlement to TDIU that was received by VA on October 31, 2007. 2. The Veteran met the percentage requirements for a grant of TDIU as of August 25, 2006, but was employed on a full-time basis until September 18, 2007. 3. Resolving all doubt in favor of the Veteran, he was precluded from securing and maintaining gainful employment as a result of service-connected disabilities beginning September 18, 2007. CONCLUSION OF LAW The criteria for an effective date of September 18, 2007, but no earlier, for the award of TDIU have been met. 38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. §§ 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication, substantial complying VCAA notice on the underlying claim for entitlement to a TDIU, in a letter dated in March 2009. Where, as here, TDIU has been granted and the effective date has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose of the notice has been fulfilled. Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 21 Vet. App. 128 (2008). There also has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, VA treatment records, Social Security Administration disability records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. Moreover, the appeal for an earlier effective date for TDIU is granted, and any notice deficiency with respect to that claim is not prejudicial to the Veteran. Therefore, no further notice is needed under VCAA. Analysis The Veteran is receipt of a TDIU, effective from February 10, 2009. He contends that an earlier effective date is warranted as he was unemployable before 2009. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). The grant of TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The effective date of the award of an increase in compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1)(2012). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date, otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2)(2012). Based on these effective date rules, there are several potential dates for the effective date for the grant of TDIU in this case. The first date is February 10, 2009, the date of receipt of the claim under 38 C.F.R. § 3.400(o)(1)(general rule). Second, a date between February 10, 2008, and February 10, 2009, under the exception to the general rule under 38 C.F.R. § 3.400(o)(2), that is, the earliest date as of which it was factually ascertainable that an increase in disability had occurred, if the claim was received within 1 year from such date. Third and finally, a date before February 10, 2008, on the basis of a pending or unadjudicated claim for a TDIU. As an initial matter, the Board finds that there was a pending, unadjudicated claim for a TDIU prior to February 10, 2008. VA regulations define an informal claim as any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA from a Veteran, his representative, or a Member of Congress. 38 C.F.R. § 3.155(a) (2012). The informal claim must identify the benefits sought. Id. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). Evidence of unemployability submitted during the course of a claim for VA compensation could constitute an informal claim for TDIU. The Board must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims. See Norris v. West, 12 Vet.App. 413, 417 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating based on individual unemployability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam). In June 2005, the Veteran filed an original claim for VA disability compensation. In a February 2006 rating decision, the RO granted service connection for depression, rated 50 percent; left shoulder tendonitis, rated 20 percent; bilateral inguinal hernia rated 0 percent; residuals of bilateral great toenail removal, rated 0 percent; and left wrist ganglion cyst, rated 0 percent. The combined rating was 60 percent, effective June 8, 2005, the date of receipt of the claim. In February 2006, the RO notified the Veteran of the rating decision and of his appellate rights. He did not appeal the disability ratings or effective dates that were assigned. In May 2006, the Veteran filed a claim for VA disability compensation for a back condition. In a March 2007 rating decision, the RO granted service connection for L5-S1 herniated nucleus pulposus, rated 40 percent from August 25, 2006; 100 percent for convalescence from August 30, 2006; and 40 percent from October 1, 2006. The Veteran's combined rating was now 80 percent, effective August 25, 2006. In October 2007, the Veteran filed a claim for an increased rating for his service-connected depression. During a VA psychiatric examination in December 2007, the Veteran reported that he had been fired from all of his previous jobs due to lack of attendance and poor performance secondary to declining motivation associated with his depression, as well as a great deal of fatigue and difficulty concentrating. The VA examiner diagnosed major depressive disorder, recurrent, severe without psychotic features and panic disorder with agoraphobia. The examiner noted that the Veteran's depression was recurrent and severe and that the Veteran had recently lost another job due to his depression. The examiner opined that the Veteran was not completely unemployable due to the depression, but the depressive symptoms had a moderate to severe impact on his occupational functioning. In a January 2008 rating decision, the RO granted an increased rating to 70 percent for depression effective October 31, 2007, the date of receipt of the claim. The Veteran's combined rating was now 90 percent, effective October 31, 2007. VA treatment records dated in June 2008 and October 2008 indicate that the Veteran was receiving SSA disability benefits, although the disabling conditions were not identified. Another informal claim for TDIU was received by VA on February 10, 2009. On the Veteran's formal application, VA Form 21-8940, received later that month, he indicated that he last worked full-time in July 2007. He also provided his prior work history and indicated that he had been employed at several different companies from November 2005 to July 2007 and, had worked 40 hours a week at each place of employment. Information received from SSA in June 2009 showed the Veteran was awarded disability benefits in December 2008. In a statements received from the Veteran's former employer in June 2009 and October 2009, the employer indicated that the Veteran was employed from April 2006 to September 18, 2007, at which time his employment was terminated because he had missed too much time from work. Additional information received from SSA in March 2011 shows the Veteran underwent a psychiatric assessment in November 2007. The assessment covered the period from September 18, 2007, to November 8, 2007. The psychiatric diagnoses included depression, recurrent, severe; PTSD; and panic with agoraphobia. The medical consultant's finding was that the Veteran was unable to complete a work week due to problems with concentration and interruption from psychologically-based symptoms. Also, an October 30, 2007, VA treatment record that was included in the SSA records reveals the Veteran had a GAF score of 35. The Board notes that GAF scores between 31 and 40 contemplates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH ED, American Psychiatric Association (1994) (DSM-IV), p.32; 38 C.F.R. §§ 4.125(a), 4.130 (2012). As stated, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As TDIU is a derivative claim to a claim for increased rating, a claim for TDIU was pending since the Veteran submitted the claim for an increased rating for his service-connected depression in October 2007. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the earliest date of receipt of a TDIU claim is determined to be October 31, 2007. This claim was not adjudicated by the RO in the January 2008 rating decision. Even if it were determined that the January 2008 rating decision implicitly denied entitlement to TDIU, additional pertinent evidence (i.e., the VA treatment records dated in June 2008 and October 2008 showing that the Veteran in receipt of SSA disability benefits) was constructively of record within a year of that decision, and thus the 2008 rating decision remained pending by operation of law. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); 38 C.F.R. § 3.156(b). And, there was not a subsequent rating decision such that it can be shown that the pending TDIU claim was adjudicated in a final rating decision. The Board further finds that the Veteran met the schedular criteria for a TDIU in October 31, 2007, at the time his TDIU claim was received. TDIU may be assigned when service connection is in effect for one disability rated as 60 percent or more, or two or more service-connected disabilities with at least one rated as 40 percent or more such that there is a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). The Veteran had a combined disability evaluation of 80 percent effective as of August 25, 2006. Based on the evidence of record, and resolving all doubt in the Veteran's favor, it is factually ascertainable that the Veteran became unemployable on September 18, 2007, within a year of receipt of his TDIU claim. The SSA psychiatric assessment covered the period from September 18, 2007, to November 8, 2007, and shows the Veteran was unable to complete a work week due to psychologically-based symptoms. The Veteran's employer also confirmed that the Veteran was terminated from employment on September 18, 2007. Thus, the evidence establishes that the Veteran became unable to secure or follow a substantially gainful occupation, effective September 18, 2007, and he also met the schedular criteria for TDIU at that time. The evidence is in favor of the claim, and thus, a TDIU is warranted, effective September 18, 2007. The Board acknowledges that the Veteran likely exhibited some occupational impairment due to his service-connected depression prior to September 18, 2007, as evidenced by findings in earlier VA treatment records and VA examination reports. However, the record reflects that the Veteran was working full-time (i.e. was substantially and gainfully employment) during that period, and, despite any disabling effects of his depression, was clearly not unemployable until September 18, 2007. As a matter of law, a TDIU rating cannot be awarded prior to September 18, 2007, as it is premised on an inability to engage in substantially gainful employment. See Faust v. West, 13 Vet. App. 342, 356 (2000). ORDER An effective date of September 18, 2007, and no earlier, for the award of TDIU is granted. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs