Citation Nr: 1335997 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-09 665 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than March 4, 2011 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from October 1955 to July 1958. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision, which granted TDIU, and assigned an effective date of March 4, 2011. The Veteran has challenged the effective date that was assigned. In March 2013, the Board remanded the Veteran's claim to obtain a medical opinion. This was accomplished, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record makes it less likely than not that the Veteran's service connected disabilities alone were of such severity as to preclude him from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) between January 7, 2010 and March 4, 2011. CONCLUSION OF LAW The criteria for TDIU earlier than March 4, 2011 have not been met. 38 U.S.C.A. § 1155, 5110 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. TDIU In this case, the Veteran was granted TDIU as of March 4, 2011, the date he first met the schedular rating criteria for a TDIU. While the Veteran did not file a formal claim for TDIU, the RO concluded that he had stopped working years earlier and had cited headaches (a condition for which he is service connected) as one of the reasons for his retirement; the RO thus inferred that a claim for TDIU had been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's application for VA benefits from which the TDIU claim was inferred was received January 7, 2010. A TDIU may be assigned, where the schedular rating is less than total, when the Veteran 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, such 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). Prior to March 4, 2011, the Veteran was service connected for a lower back disability (rated 20 percent), for post-concussive headaches (rated 30 percent), for degenerative joint disease of the left knee (rated 10 percent), for degenerative joint disease of the right knee (rated 10 percent), for tinnitus (rated 10 percent) and for bilateral hearing loss (rated as noncompensable). The Veteran's combined VA disability rating prior to March 4, 2011 was 60 percent. As such, he did not meet the schedular criteria for a TDIU prior to that date. However, for those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should first be referred to the Director of Compensation and Pension for extraschedular consideration. 38 C.F.R. § 4.16(b). Here, the Veteran believes that his TDIU should date from January 7, 2010, or earlier. In October 2013, he wrote a letter, attesting that he had been 100 percent unemployable since January 1997, the date which he retired from his job as an accountant at age 58 because he reportedly could no longer handle the job due to his medical problems. He acknowledged that he had not filed a claim for disability until January 2010, because he had failed to realize that it was irrelevant to the determination of service connection whether a disability was incurred in combat, as opposed to during the regular course of service. There is no legal entitlement to an effective date any earlier than January 2010. At a minimum, a claim for benefits must be filed with VA, and none was filed prior to that date. While the Veteran may not have known he could file such claims, unfortunately, the law still does not allow an effective date any earlier than the date a claim is filed. Therefore, the Board will consider whether a total rating could be assigned between the date the Veteran filed his first VA claims in January 2010 and the date the RO has assigned the total rating in March 2011. As noted above, March 4, 2011, was the date as of which he met the schedular criteria for a grant of TDIU; consideration prior to that date would be on an extraschedular basis. The Veteran retired in 1997 after working for a number of years. At a VA examination in July 2010, he stated that he had to retire early because of his headaches, as well as the fact that he started to lose his hearing. However, while it is not disputed that he is retired, it was noted at the examination that the Veteran and his wife had traveled quite a bit, that he had served as a treasurer at his church for the previous eight years, and that he did a lot of day trading of stocks. These facts suggest that the Veteran might not have been unable to obtain or maintain any substantially gainful employment prior to March 2011. Conversely, at a July 2010 VA examination, the examiner noted that the Veteran had retired in 1997 and reported that the cause was eligibility by age or duration of work, medical/physical problem (headaches), allowing the possibility that he may have been unemployable on account of his service connected disabilities prior to March 2011. In an April 2011 statement, the Veteran stated that he had retired when it got to the point that his migraines, back pain, and ringing in the ears were interfering with his work as an accountant. He asserted that the combination of advancing age and health problems was causing fatigue, loss of energy, stress, depression, mood swings, irritability, and an inability to concentrate. The Veteran asserted in his March 2012 substantive appeal that he had retired at 58, because he felt that he could not continue his work efficiently as a result of his service connected medical problems. The Board acknowledged the Veteran's claim in a March 2013 remand, and found that a medical opinion should be obtained to specifically address whether his service connected disabilities were of such severity as to preclude him from obtaining or maintaining any gainful employment prior to March 2011. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). In May 2013, a VA examiner reviewed the claims file, then opined that that it was less likely than not that the Veteran's service connected disabilities (back, headaches, knees, tinnitus, and bilateral hearing loss) alone were of such severity as to preclude him from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) between January 7, 2010 and March 4, 2011. The examiner explained that with regard to the Veteran's back, headaches, knees, tinnitus, and bilateral hearing loss, the medical records show that he was seen at multiple VA examinations, but did not seek any significant outpatient treatment of any of his service connected conditions by primary care, urgent care, ER care, chiropractic care or physical therapy during this time period; which the examiner suggested was evidence of good control of his service connected conditions. With regards to the Veteran's knees, the examiner noted that the Veteran had denied any periods of complete incapacity secondary to his left knee condition at a VA examination in June 2010. Moreover, the Veteran had reported ability to stand one to two hours, and denied any functional limitations to walking. The Veteran had reported problems only with the left knee. The knee was examined for effusion, swelling, erythema, warmth, crepitus, snapping/popping, grinding, sub-patellar tenderness, tenderness to palpation, and laxity of ACL,LCL,MCL, but all the findings on examination were normal. The examiner also noted that at an August 2010 VA examination, the Veteran was found to be able to stand more than one, but less than three hours, and to be able to walk more than 1/4 mile but less than one mile. There was no evidence found of recorded visits for treatment of a knee condition during the requested time period. With regards to Veteran's back condition, the examiner found that the Veteran had undergone a microdiscectomy of the lumbar spine, but otherwise had not undergone any physical therapy, injections or chiropractic care. He reported no cane, brace, or other orthopedic device; and denied any specific functional limitations to walking. He reported being able to tolerate standing one to two hours. There was no evidence found of recorded visits for treatment of a back condition during the requested time period. With regards to Veteran's headaches, the examiner noted that records from a June 2010 VA examination described a migrainous-type of headaches that could occur every two weeks and last from 30 minutes up to three hours in duration. A June 2010 VA examination report contained no history of or record of MRI, EEG, PET, SPECT, CT Scans. There was no evidence found of recorded visits for headaches during the requested time period. The examiner observed that following service, the Veteran had a very good career in accounting for 12 years and then with a hospital as a Chief Financial Officer for 27 years. He retired in 1997 at age 58, but the Veteran acknowledged in June 2010 that since retirement he had done a lot of day trading of stocks. He was also involved with a church where he had served as treasurer for eight years. The examiner also observed a September 2010 VA treatment record noting that the Veteran was assessed for his eyes because he was working on the computer a lot, which reportedly strained his eyes. The examiner also noted that treatment by the Veteran's primary care provider in December 2010 did not mention back pain, knee pain, headaches, or other service connected conditions. With regards to the Veteran's tinnitus and hearing loss, the examiner stated that there was no evidence found in the medical records during the requested time period to support a significant disability, and the Veteran had good speech recognition scores in July 2010. The examiner acknowledged that at the Veteran's March 2011 VA examination he reported a limitation of walking three to four blocks due to his back condition, but even then he denied having experienced any incapacitating episodes of back pain where bed rest was prescribed by a physician in the previous twelve months. Having reviewed the aforementioned, the examiner opined that the Veteran would function well at sedentary employment where he is not required to stand for prolonged periods of time due to his back and knee conditions. There was no evidence found of a significant disability to limit employment due to headaches, hearing loss and tinnitus. Here, the Veteran has contended that he could no longer work as of his retirement in 1997. However, the Board believes that the meaning of such a contention was closer to his being unable to continue to work in the job he was in at that time, than a finding that he could not maintain any form of employment, especially with his training and experience. Since that time, and prior to March 2011, the Veteran was able to travel and work at his church; and, even as of September 2010, it was noted that he was working on the computer a lot. Thus, the evidence does not appear to show that the Veteran was incapable of obtaining or maintaining any gainful employment prior to March 2011. Rather, he may have been limited in the types of employment he could have accomplished. It is not disputed that the Veteran has a number of physical impairments, but as the VA examiner noted in 2013, the Veteran would not be precluded from a number of sedentary jobs by his service connected disabilities prior to March 2011, particularly given his high intelligence, and ability to use computers. The Veteran is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Board finds the Veteran to be credible in his reports of symptoms. However, as finder of fact, the Board must determine, both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Here, the VA examiner having reviewed the totality of the Veteran's service connected disabilities concluded that they did not preclude him from obtaining or maintaining all forms of gainful employment prior to March 2011. This opinion was fully supported by the evidence of record. The Board does not doubt that the Veteran's service connected disabilities caused him significant impairment prior to March 2011. However, as noted, the Veteran, clearly an intelligent gentleman, who participated in day-trading, and as of June 2010 had worked for eight years as a church treasurer, would appear to be capable of maintaining some form of gainful employment, especially considering his career achievements. This conclusion was echoed by the VA examiner's opinion. Because the evidence of record appears to better support the examiner's opinion than it does the Veteran's contentions, it is afforded greater weight. As such, the weight of the evidence is against the Veteran's claim, and it is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Veteran's was granted TDIU, and then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained VA and private outpatient treatment records, and the Veteran submitted statements on his behalf. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. A VA medical opinion was also obtained (the report of which has been associated with the claims file). The VA examiner reviewed the claims file and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. Neither the Veteran nor his representative has challenged the adequacy of the opinion. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to an effective date earlier than March 4, 2011 for the grant of a total TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs