Citation Nr: 1335753	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-17-363	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an effective date earlier than January 8, 2008, the assignment of a total rating due to individual unemployability due to service connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The Veteran served on active duty from November 1974 to November 1978.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, wherein the RO, among other things, awarded service connection for depression, evaluated as 50 percent disabling, and assigned a TDIU, both effective from January 8, 2008.

The Board notes that in May 2013, after the appeal was certified to the Board, the Veteran submitted additional evidence consisting of a copy of a January 2002 decision by the Social Security Administration (SSA) in which the Veteran was awarded SSA disability benefits due to his hepatitis C and cirrhosis of the liver.  This evidence was not accompanied by a waiver of consideration by the agency of original jurisdiction (AOJ).  See Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence that has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37, 20.1304.  Notably, however, the claims folder already contained the Veteran's SSA records.  Although the January 2002 decision was not amongst the records submitted by SSA, the decision transmittal sheet indicating that the Veteran had been awarded SSA disability benefits was included in the SSA records.  The transmittal sheet also listed the Veteran's primary diagnoses rendering his disabled as hepatitis C and cirrhosis of the liver.  Accordingly, because the evidence submitted in May 2013 is either duplicative of other evidence already of record or not relevant to the issue on appeal, a remand for the AOJ's initial consideration of the additional evidence received is not warranted.

An appeal on the issue of entitlement to service connection for hepatitis C and liver damage was also perfected by the Veteran when he filed a September 2006 VA Form 9 regarding the RO's denial of that claim.  However, in a December 2007 rating decision, a decision review officer (DRO) granted service connection for hapetitis C and residuals of liver cancer, status post transplant, to include the assignment of a disability rating and an effective date, for that disorder.  This represents a full grant of the benefit sought on appeal and, as such, it is no longer before the Board.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994).  


FINDING OF FACT

The evidence shows that the Veteran is unemployable due to service-connected depression, a claim of service connection for which was granted, effective from January 8, 2008; the evidence fails to demonstrate that entitlement to TDIU arose prior to the date.


CONCLUSION OF LAW

The criteria have not been met for an effective date prior to January 8, 2008, for entitlement to a TDIU. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160, 3.400, 4.16 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  The VCAA also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In February 2008, the RO sent to the Veteran a letter notifying him that to be entitled to a TDIU rating, the evidence must show that he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities.  The letter further informed him of the threshold rating requirements of 38 C.F.R. § 4.16(a) and of the requirements for entitlement to a rating of TDIU on an extra-schedular basis.  The letter also advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include relevant records not held by any Federal agency.  The letter also included the notice elements required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), for how VA determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the February 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were fulfilled.

Regarding the duty to assist, the Board finds that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were also satisfied.  In that regard, the Board finds that all available evidence pertaining to the issue decided herein has been obtained.  The evidence includes VA examination and opinion reports, VA outpatient treatment records, the Veteran's SSA records, and statements from the Veteran.  The Veteran has not indicated that there are outstanding records relevant to the issue on appeal that VA should have obtained.  Further, in May 2010, the Veteran informed VA that no longer desired a hearing before the Board.  

There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal.  The Board finds that the medical evidence of record is sufficient to rely upon to determine when it was first evident that the Veteran was unemployable due to a service-connected disability or disabilities, such that additional development on the issue is not necessary.  Thus, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were fulfilled to the extent required.

II.  Analysis

By way of background, the record reveals that in April 2005, the Veteran filed a VA Form 21-526 (Veteran's Application for Compensation and/or Pension).  Although the Veteran checked the boxes indicating that he was seeking both compensation and pension benefits, the Veteran failed to complete "Part D" of that form, pertaining to information required for pension claims.  The Veteran was initially denied service connection for hepatitis C and liver damage by way of an October 2005 rating decision.  The Veteran disagreed with that denial and perfected an appeal of the issue to the Board in September 2006.  Thereafter, medical evidence suggestive of a nexus between the Veteran's hepatitis C and service was associated with the claims folder and in a December 2007 rating decision, a DRO awarded service connection for hepatitis C and residuals of liver cancer, evaluated as 40 percent disabling, effective from April 13, 2005.  The DRO's award was considered to be a full grant of benefits sought.  

On January 8, 2008, the RO received from the Veteran a statement wherein he reported that he was suffering from depression, a spleen condition, a metabolic condition, chronic fatigue syndrome, an immune condition, and stomach residuals.  The Veteran also stated that he was not working due to his condition and requested a 100 percent evaluation from "the transplant time frame."  (VA treatment records indicate that the Veteran underwent a liver transplant in or around November 2002.)  Also submitted was a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) wherein the Veteran reported that he had last worked in November 1999 and alleged that he was unable to secure or follow a substantially gainful employment due to his "liver and associated" conditions.  An SSA database inquiry showed that the Veteran was receiving SSA disability benefits and a request for the Veteran's SSA records was made.  The Veteran's SSA records contain a disability determination and transmittal sheet evidencing that he was awarded SSA disability benefits by way of a January 2002 decision and that the primary and secondary diagnoses that formed the basis of his award were hepatitis C and cirrhosis of the liver.  

Thereafter, the Veteran submitted a statement wherein he alleged that his claimed disabilities were secondary to or residuals of his now service connected hepatitis C.  In October 2008, the Veteran was afforded several VA examinations in connection with his claims.  Relevant to the issue currently before the Board, a VA examiner considered whether the Veteran's service-connected hepatitis C and residuals of liver cancer impacted his ability to obtain and maintain substantially gainful employment, noting that the Veteran had completed four years of high school, as well as carpenter apprentice school, and had previously worked as a carpenter.  The examiner noted that the Veteran had undergone a liver transplant in 2002 and now alleged constant fatigue, abdominal pain, back pain, and stress.  In addressing the Veteran's employability, the examiner stated that the Veteran was limited in his work abilities that pertained to his previous education and employment on account of his liver cancer residuals and cirrhosis along with comorbidities of depression and degenerative disc disease.  The examiner indicated, however, that the Veteran appeared able to perform sedentary employment.  

The Veteran also underwent a VA mental disorders examination, the report of which noted that the Veteran had been forced to resign from working as a carpenter in 2001 on account of liver failure, which caused increased depression symptoms, anhedonia, irritability, and isolation.  It was also noted that the Veteran's symptoms had increased in frequency and intensity in part due to frustration over his back and abdominal pain.  Ultimately, the examiner concluded that the Veteran was unable to work due to his anhedonia, irritability, and isolation and that the Veteran's depression was a result of his liver cancer and transplant secondary to service-connected hepatitis C.  

In an October 2008 rating decision, the RO granted service connection for depression and assigned a 50 percent disability rating, effective from January 8, 2008.  The RO also awarded TDIU as of that date.  The RO's grant of TDIU was based on the VA's examiner's conclusion that the Veteran's depression rendered him unemployable.  In discussing the evidence of record, the RO noted that although the Veteran's liver cancer residuals impacted him occupationally, they did not prevent him from performing sedentary employment.

In an April 2009 statement, the Veteran argued that he was entitled to TDIU as of April 13, 2005, stating that his January 2008 submission should be considered as part of his claim decided by VA in December 2007.  The RO issued another decision in August 2009 denying an effective date prior to January 8, 2008, for the award of TDIU, and the Veteran continued to assert entitlement to an effective date of April 13, 2005, for his TDIU award.

At the outset, the Board notes that to be eligible for a TDIU rating, a claimant must be unemployable as a result of service-connected disabilities.  Pursuant to 38 C.F.R. § 4.16(a), a veteran who is unable to secure or follow a substantially gainful occupation because of service-connected disabilities and who has either one service-connected disability rated at least 60 percent or multiple service-connected disabilities yielding a combined rating of 70 percent or more (with at least one of those disabilities rated 40 percent or more) is eligible for a TDIU rating.  In addition, "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)]" should be given extraschedular consideration.  38 C.F.R. § 4.16(b).

In the instant case, the Veteran did not meet the schedular criteria for a TDIU rating prior to January 8, 2008, as his only service-connected disability prior to that date was hepatitis C and residuals of liver cancer, status post transplant, which was evaluated as 40 percent disabling.  Effective January 8, 2008, however, the Veteran was granted service connection for depression, evaluated as 50 percent disabling, which resulted in a combined disability evaluation of 70 percent.  As indicated above, regardless of whether a veteran meets the threshold rating requirements or not, TDIU may be awarded where the evidence demonstrates unemployability due to service-connected disability(ies).

Regarding the correct effectthe Veteran's award of TDIU, the law provides generally that the effective dative date for e 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.  See 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).  That is, the effective date of an award "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 Board notes that an exception to the general rule exists for increased rating claims.  In a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2013); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010).  

Given the procedural history of this case, the Board could engage in a lengthy discussion regarding the date of the Veteran's "claim" for TDIU or whether the Veteran's assertion of unemployability should be considered a claim for increase subject to the exception to the general rules regarding effective dates, but finds that such discussion is not necessary as the outcome of this appeal turns not on when the Veteran sought entitlement to TDIU, but rather, on when entitlement to such rating arose.  In this regard, the Board acknowledges the Veteran's argument that his "is a classic case of continuous prosecution," because his January 8, 2008, filing was received within the one-year period from the RO's December 2007 decision.  Indeed, as the United States Court of Appeals for Veteran's Claims (Court) has stated, "[w]hen entitlement to TDIU is raised . . . during the one-year appeal period following a decision on the claim, VA is required to consider the potential applicability of 38 C.F.R. § 3.156(b)."  Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (stating that "new evidence of unemployability related to the underlying condition submitted within one year of the assignment of an initial rating that is less than the maximum sought may constitute new and material evidence under 38 C.F.R. § 3.156(b)").  Under 38 C.F.R. § 3.156(b), if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final.  38 C.F.R. § 3.156(b); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2013) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). 

Regardless, however, of whether the Veteran's submission is considered to have been filed as of his April 2005 claim of service connection for hepatitis C and liver damage, the evidence of record does not support entitlement to TDIU prior to January 8, 2008.  This is so because the Veteran's grant of TDIU was based on medical evidence demonstrating that the Veteran was unable to secure or maintain substantially gainful employment on account of symptoms associated with his depression.  Notably, however, the Veteran was not service-connected for depression until January 8, 2008, which was the date of his claim for such, and thus, there is no basis upon which to assign an effective date prior to January 8, 2008.  See Ross v. Peake, 21 Vet.App. 528, 534 (2008) (holding that the effective date for TDIU cannot be earlier than the date of claim for the service-connected disability that established entitlement to TDIU); cf. Mayhue v. Shinseki, 24 Vet. App. 273, 281-82 (2011) (finding that, in a TDIU request submitted as part of an initial application for disability compensation, the Board should have considered evidence of unemployability and an effective date for TDIU as of the date the claimant submitted the underlying initial disability claim).

In finding that an effective date prior to January 8, 2008, is not warranted for the Veteran's award of TDIU because the disability upon which that award was based was not considered service-connected until that time, the Board has considered whether the evidence supports a finding of unemployability due to a service-connected disability other than depression prior to January 8, 2008, but finds that it does not.  In this regard, the Board is cognizant of the fact that the Veteran was found to be disabled by SSA due to his hepatitis C and cirrhosis of the liver.  However, the determination by the SSA that an individual qualifies for Social Security disability benefits is not binding on VA adjudications, which are conducted under separate and distinct rules.  See Beaty v. Brown, 6 Vet.App. 532, 538 (1994) ("There is no statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims. . . . [The Board] may not in certain cases choose to apply SSA regulations that have never been adopted by the Secretary as applicable to VA claims adjudication.").  Further, the SSA decision was rendered in January 2002, which was prior to when the Veteran underwent a liver transplant and as such, any evidence relied upon for purposes of that decision would not be relevant to the current severity of the Veteran's disability, to include whether it rendered him unemployable at any point since the April 13, 2005, effective date of his award of service connection for hepatitis C and residuals of liver cancer, status post transplant, as receiving a transplant would suggest a material change in disability.

Contrary to the SSA's determination, the Veteran was evaluated in 2008 by a VA examiner who considered the severity and occupational impact of the Veteran's service-connected hepatitis C and liver cancer residuals, to include their related symptomatology, and determined that although the Veteran may not be able to obtain or maintain employment as a carpenter, he would be able to perform sedentary employment.  The examiner also indicated that the Veteran's degenerative disc disease, a disability for which service connection is not in effect, would limit him occupationally.  Given the VA examiner's assessment regarding the occupational impact of the Veteran's service-connected hepatitis C and liver cancer residuals, which the Board finds more probative than the SSA determination for the reasons stated above, the Board cannot conclude that the evidence of record supports a finding of unemployability due to hepatitis C and liver cancer residuals alone.  

The Board has also considered the Veteran's argument that an April 13, 2005, VA progress note recognizing the existence of a mental disability should have been considered an informal claim of service connection for depression, but finds that this argument amounts to nothing more than an impermissible attempt to circumvent the finality of the October 2008 decision with regard to its award of service connection for depression.  In this regard, the Board finds that the Veteran did not timely appeal the RO's October 2008 decision with respect to the award of service connection for depression, to include its assignment of a disability rating and effective date.  Indeed, the relevant regulations define a notice of disagreement (NOD) as "[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result."  38 C.F.R. § 20.201 (2013); see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002).  The NOD must be expressed "in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review" and "the specific determinations with which the claimant disagrees must be identified."  38 C.F.R. § 20.201.  

Upon review of the evidence, the Board can find no statement submitted within a year of the October 2008 decision that can be read as constituting a valid NOD as to the effective date of the Veteran's award of service connection for depression.  Accordingly, the RO's October 2008 is final in that regard and any assertion that the Veteran should have been granted an earlier effective for his award of depression, which, in turn, would potentially allow for an earlier effective date for the award of TDIU, cannot be pursued without formally attempting to vitiate the finality of the October 2008 RO decision.  Rudd v. Nicholson, 20 Vet. App. 296 (2006) (where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final decision, in the absence of an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error, the claimant has merely raised a "freestanding" effective date claim that cannot remove the finality of the prior decision).  Moreover, the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder.  Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F .R. § 3.155 (2013); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.").

The Board has also considered the Veteran's argument that his April 2005 application for benefits raised the issue of entitlement to TDIU because the Veteran sought nonservice-connected pension at that time, which evidenced his belief that he was unemployable due to his alleged disabilities.  Regardless of whether there is any merit to this argument or not, because, as discussed above, the evidence fails to demonstrate that the Veteran is unemployable due to his hepatitis C and liver cancer residuals, he would not be entitled to TDIU prior to January 8, 2008, because entitlement to such a rating was not supported by the evidence prior to that date.  Thus, based on the facts found, entitlement arose no earlier than the date upon which the Veteran was awarded service connection for depression.  See Ross and Lalonde, both supra; 38 C.F.R. § 3.400.

Accordingly, while the Veteran contends that the effective date should be earlier than January 8, 2008, for his award of TDIU, the governing legal authority is clear and specific, and VA is bound by it.  Based on the evidence of record, entitlement to such a rating did not arise until January 8, 2008.  Thus, regardless of the date of receipt of the Veteran's "claim" for TDIU, because entitlement did not arise until January 8, 2008, there is no basis upon which to assign an earlier effective date.  38 C.F.R. § 3.400 (providing that the effective date of an award will be the date of receipt of the claim or the date entitlement arose, whichever is later).  


ORDER

Entitlement to an effective date earlier than January 8, 2008, for the assignment of TDIU is denied.



____________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs