Citation Nr: 1328670 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-12 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension. 2. Entitlement to an effective date earlier than November 17, 2008, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina, wherein the RO granted the Veteran's claim for a TDIU rating, effective from December 23, 2008. In a VA Form 21-4138, Statement in Support of Claim, dated in June 2009, the Veteran requested that the RO consider an earlier effective date for the award of the TDIU rating. Specifically, he maintained that the effective date of the award of the TDIU rating should be in January 2007, when he filed his initial claim for a TDIU rating. The RO viewed this statement as an informal claim for an earlier effective date for the grant of the TDIU disability rating. However, given that the Veteran was clearly disagreeing with the effective date assigned to the award of the TDIU rating, the Board construes the June 2009 statement as a timely notice of disagreement (NOD) to the June 2009 rating action. See 38 C.F.R. § 20.201. In a June 2010 rating action, the RO denied the Veteran's claim for an effective date earlier than December 23, 2008, for the award of a TDIU disability rating. In April 2011, the RO issued a statement of the case (SOC). In the SOC, the RO granted an earlier effective date of November 17, 2008, for the award of the TDIU rating. The Veteran filed a substantive appeal (VA Form 9) in May 2011. In December 2011, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. In July 2011, prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension. 2. On January 30, 2007, the RO received the Veteran's initial claim for a TDIU disability rating. 3. Upon the receipt of the Veteran's claim for a TDIU disability rating, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD) (also diagnosed as anxiety disorder) (50 percent disabling); residuals of shell fragment wounds to the left hip, Muscle Group XIV ( 40 percent disabling); chondromalacia patella of the left knee with mild degenerative changes (10 percent disabling); residuals of shell fragment wound to the right anterior chest (10 percent disabling); and malaria (noncompensable). The combined disability rating was 80 percent, effective from June 18, 2004. 4. Resolving reasonable doubt in favor of the Veteran, at the time he submitted his initial claim for a TDIU disability rating, his service-connected disabilities, specifically his PTSD and left hip disability, precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran for the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. An effective date of January 30, 2007, but not earlier, for the assignment of TDIU is warranted. 38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(p)(r), 3.155, 3.157, 3.400(o)(2), 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Claim The Veteran filed a timely appeal with respect to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension. However, in July 2011, he submitted a statement wherein he indicated that he wanted to withdraw his appeal for the aforementioned issue. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal with respect to the claim for whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. II. Earlier Effective Date Claim A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim for an effective date prior to November 17, 2008, for the award of a TDIU disability rating. In fact, the Board has granted an earlier effective date of January 30, 2007, the date the RO received the Veteran's initial claim for a TDIU rating. Therefore, no further development is needed with regard to this issue, as the claim is granted in full. B. Analysis At the outset, the Board notes that the United States Court of Veterans Appeals (Court) has determined that a TDIU "claim" is not a separate claim for benefits; rather it is a part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App 447, 454-55 (2009). 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 (2012). The effective date of an increase in disability compensation shall be the earliest date as of which it was factually ascertainable that an increase in disability had occurred if a claim was received within one year from such date; otherwise, the effective date shall be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2012). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). A specific claim in the form prescribed by VA 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. § 3.151. A "claim" means 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). Any communication or action from a claimant, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) also provides that disabilities resulting from common etiology or a single accident will be considered as one disability. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure or follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"'). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service- connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad, supra. In this case, the evidence of record shows that the Veteran had active service from November 1967 to October 1969. While he was in the military, he served in Vietnam as a medic. After his discharge, he worked for the U.S. Postal Service as a letter carrier for over three decades. In a VA medical statement from C.O., M.D., a VA psychiatrist, dated in May 2005, Dr. O. stated that she treated the Veteran for his service-connected PTSD at the VA Medical Center (VAMC) in Durham, North Carolina. Due to the hypervigilance, anxiety, poor concentration, irritability, and intrusive memories, the Veteran was having difficulty working. According to Dr. O., because the Veteran's ability to work was impaired by his PTSD, she was recommending that he take a medical leave of absence from work. The evidence of record shows that the Veteran did subsequently take a medical leave of absence from work. Specifically, in a medical statement from D.E., M.D., a VA physician, received in June 2005, Dr. E. reported that the Veteran was incapacitated and could not work from May 12, 2005 to July 6, 2005, due to his service-connected PTSD and left hip disability. The Veteran was allowed to return to work on July 7, 2005. However, regarding whether there were any restrictions, Dr. E. stated that the Veteran could not perform any overtime. Dr. E. indicated that the Veteran's left hip disability limited him to 40 hours a week. VAMC outpatient treatment records show that in October 2005, the Veteran underwent follow-up treatment for his PTSD. At that time, he was evaluated by S.D.M., M.D., a VA psychiatrist. Dr. M. opined that the Veteran's PTSD had caused severe impairment in social and occupational functioning and that he should be considered completely disabled. In June 2005, the RO assigned an increased rating of 10 percent for the Veteran's anxiety disorder, effective from December 22, 2004. The Veteran submitted a timely notice of disagreement with the 10 percent rating. In June 2006, the RO issued a statement of the case and awarded an increased rating of 50 percent, effective from June 18, 2004. In a statement received in June 2006, the Veteran stated that this award satisfied his appeal. Thus, to the extent that a TDIU was part of the claim for an increased rating for an anxiety disorder, the Veteran did not perfect an appeal of the June 2005 rating decision and it became final. On January 30, 2007, the RO received the Veteran's claim for a TDIU disability rating. At that time, he was service connected for the following disabilities: PTSD (also diagnosed as anxiety disorder) (50 percent disabling); residuals of shell fragment wounds to the left hip, Muscle Group XIV ( 40 percent disabling); chondromalacia patella of the left knee with mild degenerative changes (10 percent disabling); residuals of shell fragment wound to the right anterior chest (10 percent disabling); and malaria (noncompensable). The combined disability rating was 80 percent, effective from June 18, 2004. In a statement from the Veteran, dated in February 2007, he stated that his job as a letter carrier involved prolonged walking and climbing stairs which aggravated his service-connected left hip disability. VAMC outpatient treatment records show that in April 2007, the Veteran underwent an evaluation. At that time, Dr. D.E. stated that from a disability standpoint, the Veteran was unable to walk more than a few minutes without severe pain which made him totally disabled for his present job. However, Dr. E. indicated that it would not be easy to find the Veteran another job. The Veteran's PTSD made it very difficult for him to interact with other people for any length of time which would disable him from most typical desk jobs. According to Dr. E., the combination of PTSD and chronic pain disabled the Veteran from any job that had either significant physical labor or significant interpersonal interaction. In June 2007, the Veteran underwent a VA examination that was pertinet to his service-connected left hip and knee disabilities. Following the examination, the examiner stated that the Veteran was voluntarily seeking retirement from the U.S. Postal Service because of the strenuous nature of the work he had to perform. The examiner indicated that the Veteran was able to do his chores around the house, which involved less strenuous activity. According to the examiner, it was his opinion that the Veteran could engage in sedentary activity and most likely some less strenuous activity for employment. In a Notification of Personnel Action from the U.S. Postal Service, it was indicated that the Veteran's last day in pay status was July 1, 2007. Thus, he was retired as of that date. In a statement from the Veteran, dated in August 2007, he stated that he had been on leave from his job since May 15, 2007, and that he had retired as a letter carrier effective from July 1, 2007. According to the Veteran, he had been advised by Dr. E. to discontinue working due to his service-connected left hip and left knee disabilities, and PTSD. In a letter from the Life Insurance Department of the National Association of Letter Carriers, dated in August 2007, it was noted that the Veteran was being sent a check for his period of disability from May 23, 2007 to July 18, 2007. In September 2007, the Veteran underwent a VA PTSD examination. The examiner stated that the Veteran retired from work because of physical reasons and did not miss work due to psychiatric reasons. According to the examiner, the Veteran was somewhat anxious and short-tempered. The Veteran had some friends and he went to church. The examiner noted that the Veteran's symptoms were reduced impairment of occupational and social functioning to a moderate degree. In a Memorandum, dated on November 17, 2008, a VA Vocational Rehabilitation Counselor (VRC) notified the RO that the Veteran had been found to be medically infeasible for Vocational Rehabilitation. He was medically infeasible for Vocational Rehabilitation because of the severity of his service-connected PTSD/generalized anxiety disorder, left knee disability, and left hip disability. Due to his PTSD/anxiety disorder, he did not present himself as if he was able to adequately control his emotions. He was not able to maintain eye contact during the interview and often silently wept or openly sobbed during the interview. In addition, the Veteran was precluded from performing medium to heavy physical demand work due to the limitations imposed by his left knee and left hip disabilities. In August 2007, November 2007, and August 2008 rating actions, the RO denied the Veteran's claim for a TDIU disability rating. Within one year of each decision, the Veteran requested that the RO reconsider the decision. These statements are accepted as timely notices of disagreement. See 38 C.F.R. §§ 20.201, 20.302(a). Therefore, the August 2007, November 2007, and August 2008 rating actions did not become final, and the Veteran's claim for a TDIU was pending since January 30, 2007. In a June 2009 rating action, the RO granted the Veteran's claim for a TDIU disability rating. The RO assigned an effective date of December 23, 2008, for the award of the TDIU rating. The Veteran disagreed with that effective date and subsequently filed a timely appeal. In the April 2011 SOC, the RO granted an earlier effective date of November 17, 2008, for the award of the TDIU rating. The RO stated that it was not until November 17, 2008, the date of the Vocational Rehabilitation Memorandum, that the evidence of record showed that the Veteran was unable to work due to his service-connected disabilities. As discussed above, the effective date for a claim for an increased evaluation (which also includes a claim for a TDIU rating) is the date of the claim or the date entitlement arose, whichever is later. Here, the date of the claim is January 30, 2007, the date the RO received the Veteran's initial claim for a TDIU disability rating. The Veteran contends that this should be the effective date of his award for the TDIU disability rating. He maintains that his service-connected disabilities, specifically his PTSD and left hip disability, prevented him from obtaining or maintaining employment at that time. In reviewing the evidence of record in a light most favorable to the Veteran, the Board agrees. The Board recognizes that the Veteran did not retire from his job as a letter carrier until July 1, 2007. However, it appears that he began a medical leave of absence due to his PTSD and left hip disability sometime in May 2007. In addition, in April 2007, just four months after he filed his claim, Dr. E., a VA physician, stated that due to the Veteran's service-connected left knee and hip disabilities, the Veteran was totally disabled for his present job as a letter carrier. Moreover, Dr. E. reported that because the Veteran's PTSD made it difficult for him to interact with people, a sedentary job was also not a good option for the Veteran. Thus, although in the June 2007 VA examination report, the examiner opined that the Veteran could engage in sedentary employment, he did not consider the Veteran's PTSD when he provided his opinion. He only evaluated the Veteran's left hip and knee disabilities and did not consider the Veteran's psychiatric problems and how they interfered with his ability to obtain or maintain employment. Clearly, due to the statement from Dr. E., the Veteran's PTSD interfered with his ability to perform sedentary employment. The Board also recognizes the September 2007 VA examination report wherein the examiner stated that the Veteran retired from work because of physical reasons and did not miss work due to psychiatric reasons. However, the evidence of record clearly shows that in the past, the Veteran had missed work due to his service-connected PTSD. The evidence also reflects that his PTSD interfered with his ability to perform his job. Thus, because this statement is inaccurate, it lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In light of the above, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities, specifically his PTSD and left hip disability, precluded him from substantially gainful employment at the time he filed his claim for a TDIU disability rating on January 30, 2007. By resolving doubt in favor of the Veteran, the Board finds that an effective date of January 30, 2007, should be assigned for the award of a TDIU disability rating. ORDER The claim for whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension is dismissed. Entitlement to an effective date of January 30, 2007, for the award of a TDIU rating is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs