Citation Nr: 1328631 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-01 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than November 6, 2008 for the award of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) prior to November 6, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from December 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDINGS OF FACT 1. Prior to November 2008, the Veteran was engaged in fulltime employment and did not have total occupational and social impairment. 2. Prior to November 2008, the evidence of record does not indicate that the Veteran was prohibited from engaging in gainful employment, he was employed fulltime, and clearly did not meet the 100 percent scheduler rating criteria. CONCLUSIONS OF LAW 1. An effective date for a 100 percent schedular rating for service-connected PTSD prior to November 6, 2008 is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 2. Entitlement to a TDIU prior to November 6, 2008 is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided, 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, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400. In the current case, the Veteran was initially assigned a 30 percent rating for his PTSD with the award of service connection. This rating was set to the date of claim for service connection, August 8, 2007. The Veteran posited disagreement with the rating assigned, and was awarded a 50 percent evaluation effective to the date of the initial grant of service connection (August 2007). Following the receipt of additional medical evidence, which indicated that the Veteran was unemployable, a total schedular evaluation of 100 percent was assigned dating to July 23, 2009. The Veteran disagreed with the assignment of this date as the effective date of award for the 100 percent rating, and a subsequent RO decision, dated in November 2009, assigned the effective date of award to November 6, 2008. As this was not a full grant of the benefit sought (i.e. as it did not assign a total rating back to the initial grant of service connection in August 2007), the appeal continued. With regard to a claim for an increase, when the issue of unemployability is raised, the Board must consider the applicability of a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, from the award of service connection forward, both in considering the applicability of an effective date earlier than November 8, 2008 for a schedular 100 percent rating, the Board must also consider if a TDIU, from August 8, 2007 to November 7, 2008, is warranted. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). While there are other considerations in this regard, the most pressing concern for the Veteran's claim was the date when he became no longer able to secure and maintain gainful employment, or alternatively, was totally impaired both socially and occupationally. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Should the evidence indicate that this was at the time of his claim for service connection in August 2007, the date of claim and date entitlement arose will be the same, and will warrant assignment of the date of claim as the effective date. Should the date entitlement arose be later, such a date will be the effective date of award. 38 C.F.R. § 3.400. The award of a schedular 100 percent rating in November 2008 indicates that, at that time, there was total occupational and social impairment. The Board must look to see if there was any such impairment which would be contemporaneous with the date of claim for service connection, as it is this original claim from which the downstream effective date claim arises. Based on the evidence of record, the Board determines that an earlier effective date cannot be established. Indeed, with the filing of his claim for service connection, the Veteran was afforded a VA psychiatric examination in February 2008. The results of this examination noted that the Veteran was a "workaholic to keep his mind off things," and although he was "having more and more difficulty handling work," he was noted to be "very involved" in his fulltime job as a motivational speaker for automobile sales. It was noted that he had worked in automobile sales and financing "for years" prior to the examination. The Veteran was becoming more irritable and anxious in his work environment, and he had some reported panic attacks; however, according to the assessment, he was still able to be very dedicated to his work and, indeed, it was his place of refuge from his symptoms. This report was in February 2008, and a subsequent VA examination of November 2008 noted that the Veteran had last worked two months prior. The day following the issuance of this examination report, which detailed his marital difficulties and other occupational problems, is the effective date for the current 100 percent schedular rating. This examination report noted that the Veteran's symptoms were "worse," and that he quit his last job recently because "he could not concentrate and could not deal with people." This fact clearly uncut his ability to work in the job cited above. At the time of the November 2008 examination, the social and occupational impairment was felt to be "moderately severe." There are no other records prior to the establishment of the 100 percent rating in November 2008 which would indicate that the Veteran experienced total occupational and social impairment (the Veteran's own statement would not indicate such a finding was warranted), or, with respect to entitlement to a TDIU, was unemployable as due to his sole service-connected disability (PTSD). While the Veteran quit his job relatively proximate to his November 2008 assessment, it was not indicated until that assessment that his symptoms had grown in severity so as to indicate total occupational and social impairment. Indeed, the RO assigned this date only after receiving other private medical records, dated in 2009, which indicated that the Veteran was unemployable as of that time. However, prior to the November 2008 assessment, the evidence of record does not show that the Veteran experienced total impairment in social and occupational functioning or was unable to engage in employment. Quite the contrary, the February 2008 VA examination shows that the Veteran used work as a refuge from his psychiatric symptoms, and that he was happy in his fulltime employment, providing evidence against this claim. In this regard, it is important for the Veteran to understand that the rating criteria are based on industrial impairment. While the November 2008 VA examination report indicated that the Veteran had several jobs in the years prior to that assessment, it wasn't indicated that he was terminated or had to leave those jobs due to psychiatric illness, and the February 2008 VA examination report indicates that the Veteran was, in fact, rather sought after as a professional in the automobile sales industry (record indicates that the Veteran moved across country at that time to take a job opportunity that was beneficial to him). Thus, the earliest indication of total occupational impairment was not until November 2008, when the total schedular rating was assigned. This is later than the date of claim for service connection for PTSD (the claim from which the effective date dispute arises), and the Board cannot assign an effective date earlier than this. Further, as the evidence shows that the Veteran was able to work until the assignment of the schedular 100 percent rating, a TDIU is also inapplicable prior to November 2008. Indeed, even assuming that the Veteran could have met the schedular criteria for the assignment of a TDIU (or that consideration of an extraschedular rating was necessary), the most basic part of a claim for TDIU is that a Veteran is unable to secure and maintain gainful employment. The Veteran worked fulltime prior to the assignment of the 100 percent schedular rating, and thus, a TDIU assignment is inappropriate prior to this time. Accordingly, the claim for an earlier effective date must be denied. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (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. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). The Veteran was awarded service connection for PTSD, and had a rating assigned. He was specifically informed as to how an effective date of award is assigned, and as the claim raised the issue of unemployability, was also specifically informed as to how a claim for TDIU is substantiated. Id. It is pertinent to note that the Veteran is represented by the Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate the claims. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the current case, the Veteran has been specifically informed as to how to substantiate a claim for an earlier effective date for the assignment of a 100 percent rating for PTSD, and he has also been instructed as to how a TDIU is established prior to November 6, 2008. All evidence of record has been reviewed, and there is no indication that there is evidence from the period under review which has not been obtained. There is no duty to provide an examination in this case, as the issue under appeal does not related to the current severity of his totally disabling PTSD, and any such report would be superfluous. Thus, regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to an effective date earlier than November 6, 2008 for the award of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disability (TDIU) prior to November 6, 2008 is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs