Citation Nr: 1329696 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-24 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to January 26, 2006, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by a Decision Review Officer (DRO) at the Philadelphia, Pennsylvania, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted entitlement to TDIU, effective from January 26, 2006. The September 2008 DRO decision arose from a disagreement with an October 2006 rating decision which granted service connection for posttraumatic stress disorder (PTSD) rated 50 percent and a lumbar spine disability rated 10 percent disabling, both from January 26, 2006; and denied service connection for kidney failure, a heart condition, an upper back condition, bilateral hip conditions. Entitlement to special monthly compensation and TDIU were also denied. The Veteran initiated appeals of each denial with the filing of a March 2009 notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2007, and the Veteran perfected his appeals with an October 2007 VA Form 9. However, in November 2008 correspondence, the Veteran stated that the grant of entitlement to TDIU satisfied all of the pending appeals. He then filed a new NOD with the assigned effective date for TDIU; this is the sole issue currently on appeal. On July 2009 and October 2009 VA Form 9's, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing before a Veterans Law Judge, to be held at the RO, or via videoconference from the RO. However, in January 2011, the Veteran's representative submitted a written certification that the Veteran would not be attending his scheduled hearing. He did not offer a reason for declining to report, nor did he request rescheduling. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(e). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Entitlement to TDIU was denied in an unappealed September 2004 rating decision. 2. Between September 2004 and January 2006, no correspondence was received, or VA treatment documented, which reflects any intent to claim entitlement to an increased evaluation for service-connected disabilities, to include TDIU. 3. A claim of entitlement to TDIU was received on January 26, 2006. 4. Prior to January 26, 2006, the Veteran was service-connected for residuals of a splenectomy rated 30 percent disabling, and residuals of a rib fracture, rated 0 percent disabling. 5. Since January 26, 2006, the Veteran has additionally been service-connected for PTSD rated 50 percent disabling, and a low back disability rated 10 percent disabling; his combined disability evaluation is 70 percent. 6. The Veteran is rendered unable to secure or follow substantially gainful employment due to service-connected PTSD and low back disability. CONCLUSION OF LAW The criteria for an effective date prior to January 26, 2006, for the grant of TDIU are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial effective date assigned following the grant of entitlement to TDIU. Once 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran 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 Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; while there appear to be additional treatment records available from Dr. BJM, the Veteran has not authorized VA to obtain such on his behalf, nor has he submitted them himself. He has instead submitted summaries of treatment and medical opinions. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in August 2006. 38 C.F.R. § 3.159(c)(2). No VA examinations were conducted in connection with the current appeal, as assignment of the effective date does not require medical evidence. The severity of the disabilities causing unemployability is not relevant to the criteria under consideration, for reasons discussed in greater detail below. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Generally, the effective date of an award will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. TDIU is considered a claim for increased evaluation, and for such claims, an effective date of the earliest date on which factual entitlement to the benefit sought is shown is allowable, if the claim is received within one year from factual entitlement. 38 C.F.R. § 3.400(o)(2); Hurd v. West, 13 Vet. App. 449 (2000). The Veteran maintains that he has "continuously prosecuted this claim [for TDIU] since September 1995" and therefore is entitled to an effective date reflecting his earliest claim for the benefit. A review of the claims file reveals that the Veteran first, arguably, filed a claim for TDIU in November 1993, when he reported that he was having difficulty working due to service-connected disabilities and was seeking vocational rehabilitation training from VA. He explicitly made the claim in May 2004, stating that he could not work due to worsening of his service-connected conditions. However, any such claims were specifically denied in a September 2004 rating decision. The Veteran did not appeal this denial, and it became final in September 2005. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Revision of that denial is not possible in the absence of a finding of clear and unmistakable error (CUE), which is not alleged. 38 C.F.R. § 3.105(a). The Veteran made no further formal or informal claims for compensation benefits until January 26, 2006. He did not file any correspondence which explicitly or implicitly seeks additional benefits, and a review of the complete VA treatment records show a gap in treatment between 2001 and 2006. There are no treatment or hospitalization records which can be taken as an informal claim for increased benefits. 38 C.F.R. § 3.157. This includes a claim for increased evaluation of the Veteran's service-connected splenectomy residuals and fractured ribs; a claim for increased schedular evaluation may include a claim for TDIU where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 449, 456 (2009). The free standing TDIU claim which formed the subject of the current appeal was received on January 26, 2006. The Veteran stated that he was "unable to work because of these [claimed] conditions," to include PTSD and a back disability. This establishes the date of receipt of claim for TDIU, and reflects the currently assigned effective date. No earlier effective date is possible based upon the date of receipt of claim. The Board has considered whether factual entitlement to TDIU was shown within one year of receipt of the claim for TDIU. However, even if the Veteran was shown to have become unemployable between January 2005 and January 2006, no earlier effective date would be possible. The evidence establishes, and the Veteran has not disputed, that it is service-connected PTSD and a low back disorder which render him unable to secure or follow gainful employment. Dr. BJM was explicit in her July 2008 opinion. These conditions were not service-connected prior to January 26, 2006. Accordingly, prior to January 26, 2006, there is no factual entitlement established. The Veteran was simply not entitled to compensation for the disabilities that prevent him from working. If he cannot receive benefits directly based on those disabilities prior to January 26, 2006, and he does not contend that he should, he cannot receive any benefits ancillary to and derived from them, such as TDIU. This is not a finding that the Veteran was employable prior to January 26, 2006. It is merely recognition of the fact that any unemployability prior to January 26, 2006, cannot be attributed to the conditions which were actually service-connected prior to January 26, 2006. Further, there is no basis upon which to infer any claim or appeal for earlier dates of service connection for the low back or PTSD conditions. A free-standing claim for an earlier effective date is not allowed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The assigned date becomes part of the final adjudication, and may not be disturbed in the absence of CUE, which is not alleged. Dispute of the assigned effective dates must take place within the one year appellate period applicable to the RO decision. 38 C.F.R. § 20.302. The Veteran never disagreed with the assigned dates following the grants of service connection for those disabilities in October 2006; his disagreement was limited to the denials of service connection for other conditions. Even if he had voiced such disagreement, the Veteran explicitly withdrew all appeals save that for an earlier effective date for TDIU in November 2008. Accordingly, there is no basis upon which to disturb the effective dates assigned for PSTD or a low back disability, and therefore no basis for a finding of an earlier date of factual entitlement to TDIU. The weight of the evidence is against the claim; there is no doubt to be resolved. An effective date prior to January 26, 2006, for the grant of TDIU is not warranted. ORDER An effective date prior to January 26, 2006, for the grant of TDIU is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs