Citation Nr: 1335912 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-11 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than May 3, 2005 for the grant of a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran's claim for service connection for a low back disability was date-stamped as received by the RO on April 30, 2004; there is no record of any earlier claim filed by the Veteran; the claim was granted in an October 2004 rating decision assigning the Veteran a 20 percent rating for his low back, effective April 30, 2004. 2. The Veteran's claim specifically for a total disability rating based on individual unemployability (TDIU) was date-stamped as received by the RO on November 13, 2004. 3. Prior to May 3, 2005, the Veteran did not meet the minimum percentage requirements for a TDIU. 4. The matter was referred to the Director of Compensation and Pension Service, who opined in a June 2013 statement that an earlier effective date for the grant of a TDIU under extraschedular considerations is not warranted prior to May 3, 2005. 5. The evidence of record does not indicate that the Veteran was precluded from substantial gainful employment by reason of a service-connected disability prior to May 3, 2005. CONCLUSION OF LAW The criteria for an effective date prior to May 3, 2005 for the grant of TDIU, to include pursuant to extraschedular considerations, are not met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran's earlier effective date claim for TDIU is a "downstream" element of the RO's grant of this claim in the currently appealed rating decision. For such a downstream issue, notice is not required in cases where such notice was afforded for the originating issue of entitlement to a TDIU. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see also VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (2004). Once service connection is granted, 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). VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the evidence of record. Private medical records identified by the Veteran have been obtained, to the extent possible. Records associated with his grant of Social Security Administration (SSA) disability benefits have also been obtained. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. A specific medical examination in connection with the earlier effective date claim here is not necessary as the question of when an increase in disability is factually ascertainable and is answered by the Board based on the evidence of record. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). Earlier Effective Date for TDIU prior to May 3, 2005 The Veteran contends he is entitled to an effective date prior to May 3, 2005 for the grant of TDIU. He mainly seeks an effective date back to March 2004, the time he claims he stopped working. In general, the effective date of an award of benefits shall be the date the claim was received or the date entitlement arose, "whichever is later." See generally 38 C.F.R. § 3.400 (emphasis added). Generally, a claim for TDIU is considered analogous to an increased rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (holding that a claim for TDIU is a claim for increased compensation and the effective date rules for increased compensation apply to a claim for TDIU); see also Norris v. West, 12 Vet. App. 413 (1999). Thus, the effective date of TDIU is generally determined in accordance with the laws and regulations governing effective dates of increased ratings. See Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007). Where a claim for TDIU stems from an initial disability rating, the service-connection earlier effective date regulation ought to apply by analogy. See Rice v. Shinseki, 22 Vet. App. 449, 456 (2009) (explaining that Hurd v. West, 13 Vet. App. 449 (2000) does not stand for the proposition that an assertion of entitlement to TDIU is always a claim for increased compensation, and because the CAVC found that TDIU in this case was on direct appeal as part of the initial disability rating it was error for the Board to apply 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(1)). Here, the Veteran filed a claim for entitlement to service connection for a low back disability on April 30, 2004, but did not claim TDIU until November 13, 2004, after his low back disability had been service-connected. The claim was a stand-alone TDIU claim and not filed in conjunction with disputing the initial rating of his low back disability. Thus, the Board finds the circumstances of the procedural history here akin to an increased rating claim. In general, the proper effective date for increased rating claims are the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred. 38 C.F.R. § 3.400(o)(2). The date the RO received the Veteran's TDIU claim is November 13, 2004. The Veteran was first service-connected for his back disability, his only service-connected disability at that time, effective April 30, 2004. Although 38 C.F.R. § 3.400(o) potentially allows for an effective date preceding the date of claim by one year, here, regardless of the Veteran's employability, the Board concludes April 30, 2004 is the earliest the Veteran may be awarded a TDIU because he did not have any service-connected disabilities prior to this date. Schedular Considerations TDIU is granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). TDIU 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. Id. Here, service connection is in effect for a low back disability and right lower extremity radiculopathy, associated with the low back disability. Prior to May 3, 2005, service connection was in effect for a low back disability, rated 20 percent disabling. Thus, prior to May 3, 2005, the schedular criteria for TDIU had not been met. There are no current increased rating claims still pending that would affect his rating prior to May 3, 2005 and, therefore, TDIU is not entitled to an earlier effective date on a schedular basis prior to May 3, 2005. Extraschedular Considerations If the required percentage requirements are not met, but a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, the Director of VA Compensation and Pension Service must consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board may not award TDIU on this basis in the first instance. In this case, a 20 percent rating for his low back disability was granted, effective April 30, 2004; which was increased to 40 percent, effective July 26, 2005; which increased to 60 percent, effective January 20, 2006; which decreased to 40 percent, effective May 11, 2006; which again increased to 50 percent, effective September 1, 2006. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). His right leg radiculopathy was originally rated 20 percent, with an effective date granted to May 3, 2005, which was increased to 40 percent, effective May 11, 2006. The combined service-connected disability rating was 20 percent, effective April 30, 2004; which was increased to 40 percent effective May 3, 2005. This combined disability rating became 50 percent, effective July 26, 2005, and 70 percent, effective January 20, 2006. The combined disability rating was then reduced to 60 percent, effective May 11, 2006, but then increased again to 70 percent, effective September 1, 2006. TDIU was granted in a January 2007 rating decision, effective May 11, 2006, the date the Veteran's service-connected disorders originally met the schedular criteria. In light of increased ratings awarded, however, in a March 2012 rating decision, the RO assigned an effective date of January 20, 2006, for TDIU, the date the service-connected disorders first met the schedular criteria. The Board last remanded the claim in September 2012 for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The matter was referred to the Director of Compensation and Pension for extraschedular consideration and the Director's June 2013 opinion is of record. Based on the June 2013 opinion and findings, the RO awarded an earlier effective date for TDIU of May 3, 2005. Considering the June 2013 opinion, the Veteran's statements, and the medical evidence of record, the Board finds the Veteran is not entitled to an effective date prior to May 3, 2005 on an extraschedular basis. The Veteran testified during his October 2007 hearing before the Board that he injured his back in the military in the 1970s, but did not file a claim until April 2004 when his spine precluded him from working. He testified his low back disability deteriorated quickly. Indeed, his representative at that time noted that while the Veteran was initially awarded a 20 percent rating for his low back disability, the disability was quickly increased to 60 percent by January 2006, less than two years later. The Veteran indicates he worked in various jobs, to include document control and clerking, but most recently he had been employed as a janitor from 2000 to March 2004. His SSA disability records also indicate the Veteran attempted self-employment from 2005 to 2007 as a drafter, but the business did not materialize a substantial income. The Veteran has two years of college education, and according to the evidence of record, substantial gainful employment as a janitor ended in March 2004. The Veteran was awarded SSA disability benefits, effective June 6, 2005. Although the Veteran claimed unemployability prior to this date, the SSA determined in an August 2007 opinion that unemployability was not supported by the record prior to June 6, 2005. Prior to May 3, 2005, the medical evidence included private medical records from 2003 through 2004, VA outpatient treatment records from 2004 to 2005, a September 2004 VA examination, and residual functional capacity assessments done in conjunction with the Veteran's SSA disability claim dated in March and April 2005. The private treatment records dated in 2003 indicate the Veteran sought treatment for ongoing back pain. An October 2003 magnetic resonance imaging indicates the Veteran had disc herniation with stenosis and degenerative changes. He was treated with epidural injections, which appeared to help control pain. Indeed, a 2004 VA outpatient treatment record indicates the Veteran's low back pain is "stable since epidural steroid injection." VA outpatient treatment records dated in 2004 indicate exacerbations of back pain. In December 2004, the VA physician noted the Veteran's complaints of "unable to work," but also indicated he was self-employed at the time. The Veteran was afforded a VA examination in September 2004 indicating his complaints of chronic pain. At that time, however, the Veteran denied any numbness, tingling, or radiculopathy. The examiner noted the Veteran last worked in October 2003 doing maintenance work at a private hospital. The Veteran was diagnosed with chronic mechanical low back strain, spinal stenosis, and severe degenerative disc disease. As for functional limitations, the examiner found the Veteran's low back disability to interfere with lifting, twisting, and bending. The major impairment, however, was described as pain on repetitive motion. The examiner did not indicate the Veteran was precluded from working. In conjunction with his SSA disability claim, the Veteran was afforded a residual physical capacity assessment on March 7, 2005. At that time, the examiner detailed the Veteran's pertinent medical history and current complaints. The Veteran complained of chronic pain, and limitations with driving, and household chores. At that time, he also complained of numbness into his legs. The examiner found the Veteran would have reasonable limitations to more strenuous activities, such as heavy lifting, but did not otherwise find the Veteran unemployable altogether. Rather, the examiner found several inconsistencies in the Veteran's ability to actually stand, walk, and sit. Objective evidence at that time supported limitations based on the back impairment, but the Veteran's description of "severe limitations" was not found supported by the record. Indeed, the examiner noted there had been "several months at a time, including more current periods, where the records indicate a stable, improved condition." The April 20, 2005 follow-up report merely indicates the Veteran reporting his condition slowly worsening. The prior opinion was otherwise affirmed. In contrast, medical evidence since May 3, 2005 includes specific medical opinions indicating the Veteran is unemployable. In a June 2013 opinion, VA's Director of Compensation and Pension concluded that prior to May 3, 2005 "the evidence does not support that the Veteran was unable to secure and maintain substantially gainful employment." Specifically, it was found although physical activity was limited, sedentary employment was not shown to be precluded. It was additionally noted, that although the Veteran last worked in a physically laborious employment, his work history showed he had sufficient prior experience in sedentary employment, specifically record keeping and drafting. The Board similarly concludes the record does not support unemployability prior to May 3, 2005. The Veteran claims he stopped working in March 2004 and his back quickly deteriorated. While it is clear the Veteran had physical limitations due to his low back disability prior to May 3, 2005, the totality of the evidence, to include the clinical findings and medical opinions, does not show that the Veteran was precluded from any substantial, gainful employment at that time. Accordingly, the Board concludes entitlement to an effective date earlier than May 3, 2005 for a TDIU is not warranted. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior May 3, 2005, for the grant of a total disability rating for compensation purposes based on individual unemployability, to include extraschedular consideration, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs