Citation Nr: 1338619 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-09 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than April 28, 2004, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to January 1986. This appeal to the Board of Veterans' Appeals (Board) is from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted a TDIU retroactively effective from April 28, 2004. The Veteran appealed for an earlier effective date. The Board previously remanded this earlier effective date claim in June 2012 to obtain the Veteran's vocational rehabilitation folder and associate it with the claims file, and then to readjudicate the claim in a Supplemental Statement of the Case (SSOC) after considering additional evidence received. Another Board remand in March 2013 referred this claim to the Director of VA's Compensation and Pension Service to determine, in the first instance, whether a TDIU prior to April 28, 2004 was warranted on an extra-schedular basis under 38 C.F.R. § 4.16(b). This directive having been completed, the claim is again before the Board. This appeal was processed using VA's Veterans Benefits Management System (VBMS), which is a paperless claims processing system, so entirely electronic. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of these systems allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the VBMS, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDING OF FACT Prior to April 28, 2004, the Veteran was not precluded from obtaining and maintaining substantially gainful employment if only considering service-connected disability. CONCLUSION OF LAW The criteria are not met for an effective date earlier than April 28, 2004, for the TDIU. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.400, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. VA has removed the so-called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). In regards to this claim on appeal for an earlier effective date for the TDIU, where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision regarding the initial rating or effective date, in other words, as concerning these "downstream" issues, does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is essentially the case here since the Veteran's claim did not arise in the context of him requesting a certain effective date, only instead a TDIU, and it was not until the granting of the TDIU and receipt of the effective date in question that he appealed this "downstream" issue - requesting an earlier effective date for this benefit. In this circumstance, according to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream effective date element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. Also, the RO (including through the Appeals Management Center (AMC), following successive Board remands) has taken proper measures to comply with the duty to assist the Veteran with his claim. Whereas the determination in this case primarily rests on review of evidence already of record, owing to the fact that this is an appeal for an earlier effective date, the Board has nonetheless obtained the Veteran's Vocational Rehabilitation folder and has referred this case to the Director of the VA Compensation and Pension Service for consideration of a TDIU at an earlier date on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). In still furtherance of this claim, the Veteran has provided numerous personal statements and testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). There is no indication otherwise of any further relevant evidence or information that has not yet been obtained and that is obtainable. The record as it stands includes sufficient competent evidence to decide the claim. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Governing Law, Background and Analysis Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60-percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40-percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a) (2013). Disabilities resulting from common etiology or single accident or affecting both upper or lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. But even if a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because this regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for this special extra-schedular consideration. See also Barringer v. Peake, 22 Vet. App. 242 (2008). That said, while the procedures for assignment of a total disability rating on an extra-schedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extra-schedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In this particular case at hand, the Veteran is trying to establish his entitlement to a TDIU prior to the currently assigned effective date of April 28, 2004. A TDIU claim is a claim for increased compensation, so the effective date rules for increased compensation claims apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The general rule with regards to an award of increased disability compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability had occurred during the one-year period immediately preceding the date of receipt of the claim for increased compensation. See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Otherwise, the effective date is the date the claim was received. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). The U. S. Court of Appeals for Veteran's Claims (Court/CAVC) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase in compensation as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). Here, the Board sees that the Veteran filed his formal TDIU claim application (VA Form 21-8940) at the RO on April 28, 2004, so as of the current effective date. There was no earlier pending unadjudicated claim since, although this claim had been previously considered and denied in a July 1996 rating decision, he had not appealed that earlier decision within one year of receiving notification of it in August 1996, so by August 1997, by filing a timely NOD. Consequently, that prior July 1996 denial of his TDIU claim had become final and binding on the merits. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200. As he did not thereafter again claim entitlement to a TDIU until his April 28, 2004 filing, that date is the date of receipt of his claim. He nevertheless is not precluded from obtaining an earlier effective date up to one year prior to April 28, 2004, if it is shown he was entitled to this benefit within that immediately preceding year. See again 38 C.F.R. § 3.400(o)(2). He alleges that he was indeed unemployable on account of his service-connected disabilities even during that immediately preceding year seeing as though he was denied VA vocational rehabilitation benefits as of March 2003 due to the determination that he was unsuitable for further vocational training at that time. As to consideration of the propriety of such an award of a TDIU during the one year preceding the date of claim, however, the Veteran did not meet the schedular requirements of § 4.16(a) until April 28, 2004, based on the service-connected disabilities of depression, degenerative disc disease of his lumbosacral spine, degenerative disc disease with neuroforaminal stenosis of his cervical spine, and associated radiculopathy of his right and left upper extremities. The combined rating for these service-connected disabilities as of April 28, 2004 was 90 percent, when also considering the bilateral factor. See 38 C.F.R. §§ 4.25, 4.26. Prior to April 28, 2004, he only had a single service-connected disability, degenerative disc disease of his lumbosacral spine, then rated at 40 percent. Consequently, the only possible avenue of recovery for him before April 28, 2004, would be a TDIU under the extra-schedular provisions of § 4.16(b). Therefore, his claim for an earlier effective date for his TDIU was referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine, in the first instance, whether he was entitled to a TDIU on an extra-schedular basis during the one-year period immediately preceding the filing of this claim. See again Floyd, supra; VAOPGRCPREC 6-96. An August 2013 opinion provided by the Director the Compensation and Pension Service regarding the Veteran's potential entitlement to a TDIU on an extra-schedular basis states as follows: ....[The Veteran's April 28, 2004 formal TDIU claim] stated the Veteran was unable to work due to his service-connected low back disability. His last full-time employment was with Boeing Corporation, ending in July 1999. He noted that he is unable to work due to his disability. He is in receipt of a pension from Boeing and worker compensation. The Boeing Return to Work / Functional Capacities form signed by a physician on November 29, 2002 noted a diagnosis of cervical disc disease. The Veteran could lift up to 25 pounds, sit, stand, walk, and climb stairs and ladders in 3-6 hour durations, and occasionally bend, kneel, crawl, and squat, but he was unable to work overhead. All of the symptoms were considered permanent. The March 2003 Vocational Rehabilitation and Employment letter notified the Veteran that his disabilities made it unreasonable to expect that he could use the program to get and keep competitive employment. The letter cited the neuropsychological evaluation as evidence. The neuropsychological evaluation stated the following, "After much discussion, it was determined that the Veteran is not currently reasonably feasible, that he cannot maintain suitable employment also determined that no IC [sic?] exist." The August 2005 rating decision awarded service connection for depression associated with degenerative disc disease (DDD) of the lumbar spine evaluated at 50 percent; DDD with neuroforminal stenosis of the cervical spine evaluated at 20 percent; and radiculopathy of the left and right extremities associated with DDD of the cervical spine evaluated at 20 percent. These disabilities were assigned an effective date of April 28, 2004. The service-connected lumbar spine disability was continued at 40 percent. ...Prior to April 28, 2004, and one year prior to this date, there is no evidence that the service-connected lumbar spine disability rendered the Veteran unable to secure and maintain employment. However, the nonservice-connected cervical spine condition had a significant effect on the Veteran's ability to perform the duties of his full-time occupation. ...The nonservice-connected cervical spine condition restricted the Veteran's ability to work overhead severely impacting his ability to perform his occupational duties. The record presents no clear evidence that the severity of the service-connected lumbar spine condition precluded employment. The March 2003 Vocational Rehabilitation and Employment decision stated it was determined that the Veteran's disabilities make it unreasonable to expect that he could use the program to secure and maintain competitive employment. Since the lumbar spine disability was the only service-connected disability, it is not unreasonable to conclude that the Vocational Rehabilitation and Employment decision was referring to the service-connected and nonservice-connected conditions. The neuropsychological evaluation presented no discussion of the functional impairment attributable to the nonservice-connected and service-connected conditions rendering the opinion of no probative value in determining the Veteran's unemployability status. The record presents no clear evidence that the Veteran was unable to secure and follow any substantially gainful occupation solely due to his service-connected lumbar spine disability. Entitlement to a TDIU on an extraschedular basis is denied. The foregoing opinion of the VA Director, Compensation and Pension Service, rules out an inability to obtain and maintain substantially gainful employment due to service-connected disability, primarily upon the basis that before April 28, 2004 the Veteran's nonservice-connected disabilities, in particular his then nonservice-connected cervical spine disorder, were the decisive factor affecting employability. The opinion acknowledges he likely could not work since 1999, but observes that the reason he lost his job at that time was not being able to reach overhead and other characteristic symptoms of cervical spine disability. The March 2003 VA denial of Vocational Rehabilitation was premised on both service-related and nonservice-related disabilities, of which the lumbosacral spine disorder was the only service-connected disability prior to April 28, 2004. Presently, upon review of the March 2003 VA Vocational Rehabilitation decision, and contemporaneous orthopedic and neuorological assessments of employment capacity from private treatment providers, the Board is inclined to view the opinion of the VA Director, Compensation and Pension Service, as accurate and dispositive. Indeed, frequently around this time the Veteran's cervical spine was identified as the cause of employment limitation, without reference to disability of the lumbosacral spine. The opinion of the Director, Compensation and Pension Service, is to be dispositive in resolving claims for a TDIU on an extra-schedular basis, and moreover, this opinion had a proper factual foundation in the record. Therefore, the competent and probative evidence does not substantiate an award of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) to in turn allow for assignment of an earlier effective date for the TDIU. The Veteran has newly-contended that service connection for cervical spine disability should have been granted at some point in October 2001, so earlier, when he alleges he attempted to file a claim but was verbally discouraged from doing so by RO personnel. Essentially, he is claiming entitlement to an earlier effective date than April 28, 2004, for the grant of service connection for the DDD with neuroforminal stenosis of his cervical spine. An earlier effective date might fulfill the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) (in combination with the service-connected lumbar spine DDD) retroactive to October 2001, and therefore facilitate an earlier award of the TDIU as well. This however notwithstanding, a prior Board decision of May 2010 already denied a claim for an effective date earlier than April 28, 2004, for the grant of service connection for the cervical spine disability. No appeal was undertaken with the higher U.S. Court of Appeals for Veterans Claims (Court/CAVC), nor has the Veteran identified or alleged Clear and Unmistakable Error (CUE) in the Board's decision. As a result, he is barred from revisiting the issue. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104(a), 20.1100. See also 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 RO rating decision, in the absence of an attempt to vitiate the finality of that decision through collateral attack, such as in the way of an allegation of CUE, the claimant has merely raised a "freestanding" earlier effective date claim that cannot remove the finality of the prior decision). Consequently, the contention in regards to an October 2001 previous claim for service connection for cervical spine disability does not materially substantiate the instant appeal. Accordingly, the Board is denying the claim for earlier effective date for the TDIU. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to an effective date earlier than April 28, 2004, for the grant of the TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs