Citation Nr: 1330668 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 95-01 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an effective date earlier than June 13, 1996, for the grant of a total disability rating based on unemployability due to service-connected disabilities (TDIU) on an extraschedular basis. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from January 1966 to October 1967. This matter presents with a lengthy procedural history and comes before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which granted a TDIU effective December 23, 1998. In May 2008, the U.S. Court of Appeals for Veterans Claims (Court) approved a Joint Motion of the VA General Counsel and the Veteran's then attorney to remand a May 2007 decision of the Board for failure to remand the issue of entitlement to an earlier effective date for a TDIU to the RO for adjudication and issuance of a statement of the case (SOC). This issue was not before the Board at this time. In July 2009, the Board remanded the case for issuance of an SOC on the issue involving an earlier effective date for a TDIU. In a November 2009 rating decision, the RO awarded an earlier effective date for a TDIU of June 13, 1996. In January 2012, the Board again remanded the issue of the effective date for the TDIU for further development. In May 2013, the Board denied an effective date for a TDIU on a schedular basis earlier than June 13, 1996, and remanded the issue of an effective date earlier than June 13, 1996, for a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The matter has been returned for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Considering his employment history and educational and vocational attainments, as of July 21, 1989, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disability. CONCLUSION OF LAW The criteria for an effective date of July 21, 1989, for a TDIU have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, that 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 later. 38 C.F.R. § 3.400. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). As discussed in the May 2013 Board decision, the Veteran does not meet the 38 C.F.R. § 4.16(a) schedular requirements for a TDIU, and therefore 38 C.F.R. § 4.16(a) will not be discussed in this decision. Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Therefore, rating boards are to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board is to include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As reflected in a March 2013 statement, the Veteran asserts that the effective date of his TDIU should be July 21, 1989. He asserts that on that date he underwent an operation for his service-connected ankle disability, and that from the time of that operation, he has been unable to work due to the effects of the operation and subsequent condition of his ankle. By way of history, the Veteran filed a claim in March 1989 for increased disability benefits, to include an increased rating for his service-connected right ankle disability. On July 21, 1989, the Veteran underwent an Evans procedure of the right ankle. In a November 1989 rating decision, the Veteran was granted a temporary total disability rating due to convalescence from the surgical procedure pursuant to 38 C.F.R. § 4.30, and the matter of an increased rating for his right ankle disability was deferred. An October 1990 rating decision denied, in part, extension of convalescence benefits and an increased rating for the residuals of shell fragment wounds to the right ankle. The Veteran filed a notice of disagreement in October 1990 and therein requested a hearing. An SOC was issued in August 1991 and a substantive appeal was received in October. After a March 1992 hearing, a March 1993 decision by a VA hearing officer denied extension of convalescence benefits and awarded an increased rating, to 20 percent disabling pursuant to DC 5010-5271 (traumatic arthritis and limitation of motion of the ankle), for the residuals of shell fragment wounds to the right ankle. A May 1993 rating decision implemented the hearing officer's decision. In December 1993, the Veteran filed a claim for a TDIU, which was granted in a November 1999 rating decision. However, when a request for a TDIU is made during the pendency of a claim, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the Board finds that the Veteran's TDIU claim in this case was raised in connection with the original March 1989 claim for increase. This created some confusion in the Veteran's case as the Rice decision had been issued in 2009, well after the Veteran's claims began. During the period pertinent to the Veteran's March 1989 claim and prior to June 13, 1996, the Veteran's service-connected disabilities were: traumatic arthritis of the right ankle, postoperative residuals of fracture; shell fragment wound of the right thigh; bilateral hearing loss; and, effective March 4, 1992, posttraumatic stress disorder. In remanding the issue of entitlement to a TDIU on an extraschedular basis in May 2013, the Board instructed the agency of original jurisdiction to refer this case to the Director of Compensation and Pension Service for consideration of whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to June 13, 1996. In May 2013, the Compensation and Pension Service issued a decision denying a TDIU on an extraschedular basis. Considering the pertinent evidence in light of the governing legal authority, the Veteran's claim for an effective date for a TDIU of July 21, 1989, must be granted. As of July 21, 1989, the record reflects that the Veteran has not been employed. Furthermore, it reflects that, given factors such as his employment history and educational and vocational attainments, he has been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, and, specifically, due to his right ankle disability. The Veteran underwent VA evaluation for complaints of pain and instability of the right ankle on July 20, 1989, at which time it was noted that he had originally injured the ankle in service when suffering a shrapnel wound. It was noted that he was fully employed at that time. On July 21, 1989, the Veteran underwent an Evans procedure of the right ankle, at which time it was noted that he was not able to work at the time. Subsequent VA treatment records dated throughout the early 1990s reflect that the Veteran did not return to his long-time job as a truck driver following his surgery, which, according to the Veteran, was due to his right ankle condition. During an January 1991 evaluation, the Veteran reported that he had worked as a truck driver for the same company for 22 and a half years, but had not been working because of his right ankle for the past one and a half years, and that his employer would not accept him back because of his disability and the fact that he had been disabled for one and a half years. In this regard, the Board fully understands and appreciates how a right ankle condition could uniquely impact a truck driver, as a truck driver must be able to push pedals with this ankle in a truck for long periods. If he cannot, it severely impacts his ability to function in a field he has worked in for decades. A similar situation would be concert pianist with a small left ringer finger disability: While such a disability would be a minimal problem for the average person (which the rating criteria is designed to address), given what the person does (plays piano) it would be a major obstruction. Social Security Administration (SSA) records reflect that the Veteran reported being a delivery truck driver for a manufacturer from 1967 to 1989, but that he had not been able to walk without a cane, did not have use of his right ankle, and could no longer perform his occupation following the July 1989 surgery. He also indicated that he had dropped out of GED classes recently due to inability to concentrate or focus due to depression. In a January 1993 decision, SSA determined that the Veteran became disabled on July 20, 1989, had not been employed since his alleged onset date, could no longer perform his past work a truck driver, and was not able to engage in substantially gainful activity. The Veteran also submitted a report from rehabilitation counselor, C.S.-G., dated in July 1994, indicating that, due to his service-connected disabilities, the Veteran did not have the residual functional capacity to meet the lifting, standing and walking requirements of medium work, heavy work, or very heavy work, or to meet the standing, walking, and leg-foot control requirements of light or sedentary work. The report also indicates that the Veteran's pain was of such intensity and frequency that it would prevent him from performing sedentary work or any other work in the national economy. C.S.-G. concluded that, based on review of medical records and generally accepted vocational principles, the Veteran's service-connected impairment rendered him unable to secure or follow a substantially gainful occupation, with no consideration given to the Veteran's age or non-service connected disability. A statement from the Veteran's former employer received by VA in March 1995 reflects that the Veteran had worked for the employer as a truck driver from October 23, 1967, and had last worked and received his last payment on July 19, 1989. It was noted that the reason for termination of employment was "Disability Retirement 8/31/90." Given the above, the record reflects that, beginning the date of the Veteran's July 21, 1989, surgery, he did not, and was not able to, engage in the occupation that he had performed for the last 22 years. This is confirmed by his employer's March 1995 statement, including that the Veteran left his job on "Disability Retirement." This is also supported by the findings contained in the January 1993 SSA decision, and the July 1994 vocational report of C.S.-G. The Board notes a June 1990 evaluation of the Veteran right ankle by a VA examiner, who, while noting that the Veteran had been off work since July 19, 1989, concluded after examining the Veteran that he may have some anatomical impairment but "certainly has no functional limitation that would prohibit him from seeking gainful employment in the usual and reasonable occupational environment." The Board also notes a July 1990 VA note reflecting that the Veteran was on disability from work but was now being told to report back to work or be terminated, but that the Veteran felt that he was unemployable and could not handle the stress of being forced back to work. The Board further notes the report of a January 1991 examination in connection with the Veteran's claim for SSA benefits, which indicates that "[i]t is rather clear that the [Veteran] has a limited ability to be engaged in active types of employment and is attempting to prepare himself for a more sedentary level of activity and employment." However, following the June and July 1990 treatment notes, the Veteran again underwent surgery for his right ankle disability in October 1990, following which he was again granted a temporary total disability rating due to convalescence pursuant to 38 C.F.R. § 4.30. Also, while the Veteran's employer may have requested that he returned to work at some point following his initial surgery in July 1989, the employer's March 1995 statement confirms that the Veteran had last worked for the employer on July 19, 1989, after having worked for the employer since 1967, and that he left his job on "Disability Retirement." Furthermore, while the Veteran may have been assessed as having "no functional limitation that would prohibit him from seeking gainful employment in the usual and reasonable occupational environment," and to be "attempting to prepare himself for a more sedentary level of activity and employment," the Board must consider the Veteran's employment history and educational and vocational attainments in determining unemployability. The Veteran had worked as a truck driver for the same company since October 1967, the same month he was discharged from service, until his right ankle surgery in July 1989. Also, while it appears that the Veteran attempted to pursue a GED, his SSA records reflect that he was not able to. Given this, in addition to the other supporting evidence cited above, considering the Veteran's employment history and educational and vocational attainments, the Board finds that the evidence pertaining to whether, as of the July 21, 1989, date of his right ankle surgery, he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, specifically his right ankle disability, is at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that, beginning July 21, 1989, the Veteran has been unemployable due to service-connected disability. Accordingly, the Board finds that the claim for an effective date of July 21, 1989, for a TDIU must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER An effective date of July 21, 1989, but no earlier, for a TDIU is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs