Citation Nr: 1334180 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-36 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to September 20, 2004 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1973 to February 1976. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted entitlement to a TDIU from November 23, 2004. In a April 2013 decision, the Board granted an earlier effective date for a TDIU from September 20, 2004 under 38 C.F.R. § 4.16(a), and remanded the appeal for an earlier effective date prior to September 20, 2004 for consideration under 38 C.F.R. § 4.16(b) (where combined rating percentages for TDIU eligibility are not met). In August 2013, the Chief Benefits Director of VA's Compensation and Pension Service at the Appeals Management Center denied a TDIU under 38 C.F.R. § 4.16(b) for the period prior to September 20, 2004. The RO substantially complied with the April 2013 Board remand directives, and the Board finds that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In a more recent September 2013 Informal Hearing Presentation, the Veteran and his representative alleged clear and unmistakable error (CUE) in the RO's failure to consider the applicability of 38 C.F.R. § 4.16(b) in the April 2009 rating decision on appeal; however, the Board finds that, because April 2009 decision currently on appeal was not final at the time of his allegation of CUE, it is not the appropriate subject of a motion for revision or reversal on the basis of CUE. Motions for CUE can only be brought against final decisions. 38 C.F.R. § 3.104(a) (2013); see also 38 U.S.C.A. § 7105(c) (West 2002). Accordingly, the Board finds that the attempted motion based on CUE is moot. FINDINGS OF FACT 1. The Veteran submitted an informal claim for a TDIU on July 24, 2002; there were no communications received prior to this time that could be construed as a formal or informal claim for a TDIU. 2. For the period from July 24, 2002 to September 20, 2004, the Veteran's service-connected disabilities did not meet the combined percentage threshold criteria under 38 C.F.R. § 4.16(a) for a TDIU. 3. For the entire rating period from July 24, 2002 to September 20, 2004, the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the period from July 24, 2002 to September 20, 2004, the criteria for an earlier effective date for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400(o), 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The current appeal is for an earlier effective date prior to September 20, 2004 for the grant of a TDIU. Earlier effective date claims are generally considered to be "downstream" issues from the original grants of a claim if appealed from that initial grant. VA's General Counsel has promulgated an advisory opinion interpreting that separate notice of VA's duty to assist a veteran of his or her concomitant responsibilities in the development of a claim involving such downstream issues is not required when the veteran was provided adequate VCAA notice following receipt of the original claim. VAOPGCPREC 8-2003. In a December 2002 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for a TDIU as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The RO granted a TDIU in August 2009. The Veteran was provided additional notice in May 2013 addressing the elements of a claim for a TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board finds that VA has provided the Veteran with adequate VCAA notice. With regard to the appeal for an earlier effective date for TDIU, the Board finds that no VCAA assistance is necessary because the outcome of the effective date claim depends exclusively on documents which are already contained in the Veteran's record. The United States Court of Appeals for Veterans Claims (Court) has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by the failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). With respect to the appeal for an earlier effective date for a TDIU prior to September 20, 2004, because the Board is granting an earlier effective date for TDIU to the earliest date that is legally possible, the July 24, 2002 date of receipt of claim, no additional development could alter the evidentiary or procedural posture of this case. Because there is no potential for additional evidence, there is no requirement for further VCAA notice or assistance. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice is not required where there is no reasonable possibility that additional development will aid the claimant). The Board therefore finds that VA's duties to notify and assist contained in the VCAA are not applicable to the current appeal for an earlier effective date. VA must also make reasonable efforts to assist a veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA treatment records, VA examinations, Social Security Administration (SSA) records, and the Veteran's statements have been associated with the claims file. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Effective Date and TDIU Law and Analysis The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C.A. § 5110(a) (West 2002). The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2013). VA regulations provide that the effective date for increased ratings shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1) (2013). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r) (2013). A claim is "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) (2013). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a) (2013). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). In an April 2009 rating decision, the RO granted a TDIU effective November 23, 2004. In an April 2013 decision, the Board granted an earlier effective date of September 20, 2004 for the grant of a TDIU. The Veteran contends that a TDIU is warranted from the date of his discharge from service in February 1976, from the date he was initially service-connected for a lumbar spine disability in 1998, or from the date of the claim in July 2002. As the Board has found before in the April 2013 decision, and is finding again in this decision, the Veteran submitted an informal claim for a TDIU on July 24, 2002, and there were no communications received prior to this time that could be construed as a formal or informal claim for a TDIU. In the July 24, 2002 informal claim for a TDIU, the Veteran stated that he was "claiming individual unemployability" due to a back injury sustained in service, and he reported associated pain and major depression. A formal claim for increased compensation based on unemployability (VA Form 21-8940) was later submitted on October 23, 2002. The Board finds that there were no communications received prior to July 24, 2002 that could be construed as a formal or informal claim for a TDIU. Prior August 2001, September 2001, and October 2001 lay statements submitted by the Veteran were offered in relation to pending service connection claims. The Veteran did not indicate that he had an inability to work due to service-connected disabilities in these statements, and the Board finds that the Veteran did not request a determination as to entitlement to a TDIU, nor did he indicate in these statements a belief in entitlement due to his inability to work. For these reasons, the Board finds that the August 2001, September 2001, and October 2001 written statements may not be construed as a formal or informal claim for a TDIU. See 38 C.F.R. § 3.1(p). The Board finds that July 24, 2002 is the date of the claim for purposes of assigning an effective date as it was the earliest date in which the Veteran requested benefits based on individual unemployability. The Board will next address whether the Veteran has met the criteria for a TDIU for the period from July 24, 2002 to September 20, 2004. TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16(a). For the period from July 24, 2002 to September 20, 2004, the Veteran did not meet the combined percentage criteria of 38 C.F.R. § 4.16(a) for a TDIU. For the period from July 24, 2002 and prior to September 20, 2004, the Veteran was service connected for a lumbar spine disability, rated 40 percent disabling from May 1998; adjustment disorder with depressed mood secondary to the lumbar spine disability, rated 10 percent disabling from February 1999; and splenic flexure syndrome, rated 30 percent disabling from February 2004. Because adjustment disorder with depressed mood was service connected as secondary to a lumbar spine disability, these disabilities have been considered as one disability for the purposes of determining eligibility for TDIU consideration based on the combined rating percentage. 38 C.F.R. § 4.16(a). Based on the assigned ratings as described above, the Veteran had a combined 50 percent rating prior to February 2004, and a combined 60 percent rating from February 2004 to September 20, 2004, but not combined to 70 percent (although he did have one disability rated as 40 percent disabling). Accordingly, the Veteran did not meet the schedular combined rating percentage standards for TDIU eligibility under 38 C.F.R. § 4.16(a) for the period prior to September 20, 2004. Because the Veteran's combined rating failed to meet the schedular percentage standards of 38 C.F.R. § 4.16(a) prior to September 20, 2004, the claim for a total rating may be considered only under 38 C.F.R. § 4.16(b). The appeal for TDIU was referred to the Director of Compensation and Pension Service for consideration of an evaluation under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. In August 2013, the Chief Benefits Director of VA's Compensation and Pension Service adjudicated and denied a TDIU for the period prior to September 20, 2004 under 38 C.F.R. § 4.16(b). Because the appeal for a TDIU under section 4.16(b) has already been reviewed and denied by Director of the Compensation and Pension Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. In a January 2004 substantive appeal and separate January 2004 statement, the Veteran contends that he has lost jobs due to service-connected depression, stomach, and lower back disabilities. He contends that he has not been able to follow substantially a gainful occupation, and that he has been deemed to be disabled by SSA due to the same disabilities for which he is service connected. Based on the evidence of record, the Board finds that, for the entire rating period from July 24, 2002 to September 20, 2004, the evidence is in equipoise on the question of whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Evidence of record shows that the Veteran last worked in 1998 due an injury to his back. A September 2004 VA examination shows that the Veteran previously worked as a truck driver, and had not been gainfully employed since 1998. The Veteran was in receipt of SSA benefits beginning in January 2000. SSA records indicate that the Veteran was awarded disability benefits based on a primary diagnosis of an affective disorder, and a secondary diagnosis of degenerative and discogenic disorders of the back. Associated SSA medical evaluations indicate that the Veteran's depression renders him unemployable. Medical evidence of record indicates that as of January 2000 the Veteran was unable to secure and follow a substantially gainful occupation due to a combination of physical and psychiatric disabilities. SSA records show that the Veteran was awarded disability benefits beginning in January 2000 based on a primary diagnosis of an affective disorder, and a secondary diagnosis of degenerative and discogenic disorders of the back. A March 2001 summary associated with a SSA Psychiatric Residual Functional Capacity Assessment shows that the affective disorder, also diagnosed as depression, rendered the Veteran unemployable. A January 2001 private treatment note associated with SSA records also shows that the Veteran had a history of depression and other physical problems that interfered with his ability to work. VA treatment records dated from 2002 to 2004 indicate that the Veteran continued to have significant impairments due to service-connected lumbar spine and psychiatric disorders. VA psychiatric treatment records dated in 2002 and 2003 reflect a diagnosis of major depression with psychotic features and associated Global Assessment of Functioning (GAF) scale scores ranging from 45 to 55, indicating moderate to serious impairment in social or occupational functioning. See American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) at 46-47; 38 C.F.R. § 4.125 (2013) (noting that VA has adopted the nomenclature of the DSM-IV). A September 2004 VA examination shows that the service-connected lumbar spine disability results in significant limitation in range of motion with pain, and that it limited the Veteran's ability to do activities that required extended walking, bending, stooping, or climbing. A September 20, 2004 VA psychiatric examination also addressed the degree of disability during the relevant appeal period prior to the date of the examination. The September 20, 2004 VA examination assessed the Veteran with a GAF score of 50, stating that a GAF score of 50 was the highest in the past year, indicating serious impairment in social or occupational functioning during the past year. See DSM-IV at 46-47. VA treatment records indicate that the Veteran's service-connected psychiatric and lumbar spine disabilities had not improved since he was determined by SSA to be unemployable due to these same disabilities. For these reasons, and resolving the benefit of the doubt in favor of the Veteran, the Board finds that an earlier effective date of July 24, 2002, the date of receipt of the informal claim for TDIU, is warranted for the grant of a TDIU under the provisions of 38 C.F.R. § 4.16(b). See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An earlier effective date of July 24, 2002 for the award of a TDIU is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs