Citation Nr: 1339828 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-02 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than May 31, 2007, for a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to December 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously considered the above-captioned claim in September 2009, June 2010, January 2011, April 2012, and July 2013, but determined on each occasion that further development was needed. As discussed in greater detail below, the Board finds that there has been sufficient compliance with its prior remand directives such that appellate review may now proceed. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the prior remand instructions met with substantial compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As an additional introductory matter, the Board observes that the Veteran has raised original claims of service connection for anemia, osteoporosis, and a left knee disorder, to include as secondary to disabilities for which VA benefits are already established. While the Board previously referred those claims to the Agency of Original Jurisdiction (AOJ), they have not yet been developed and adjudicated in the first instance. Nor have the additional claims of service connection for hypertension, rhinitis, and asthma, which were recently raised by the Veteran's representative. See November 2013 Appellate Brief. Accordingly, the Board has no discretion but to collectively refer the issues of service connection for anemia, osteoporosis, a left knee disorder, hypertension, rhinitis, and asthma to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The Veteran was not unemployable solely due to her service-connected gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), lumbar strain, right knee injury residuals, right leg osteomyelitis, right hip bursitis, and shortening of the right lower extremity prior to May 31, 2007. CONCLUSION OF LAW The criteria for an effective date earlier than May 31, 2007, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C.A. § 5110(a), (b)(2) (West 2002 & Supp. 2013); 38 C.F.R. § 3.400(o) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset of this discussion, the Board notes that it has reviewed all the evidence in the Veteran's paper and electronic claims file. The Board has also obtained and reviewed the claims file of her late husband (and fellow retired service member), which the Veteran has identified as having information pertinent to her appeal. Although the Board is obligated to provide adequate reasons and bases for its decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus on the evidence needed to substantiate the Veteran's claim for an earlier effective date for TDIU and what the record shows, or fails to show, with respect to that issue. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). I. Veterans Claims Assistance Act of 2000 (VCAA) Before proceeding to the merits of a perfected appeal, the Board must consider whether VA has met its duties to notify and assist the Veteran under the VCAA. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Hence, the Board will now address each of these statutory duties in the order set forth below. Duty to Notify The issue on appeal arises from the Veteran's disagreement with the effective date assigned following the award of TDIU benefits. Once a claim for TDIU is granted it is substantiated and additional notice is not required. As such, any defect in the notice that the Veteran has received during the pendency of this appeal is tantamount to harmless error and therefore not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA has effectively met its duty to notify the Veteran under 38 C.F.R. § 3.159(b). Duty to Assist The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c). As noted in the Introduction, the Board has remanded this appeal on five separate occasions to obtain pertinent service and post-service treatment records, as well as other evidence and argument proffered by the Veteran and her representative. Significantly, neither party has alerted VA to the existence of additional relevant documentation that has yet to be obtained. Nor has the record otherwise shown that such evidence remains outstanding. In addition to the undertaking the above development, the Board has assisted the Veteran by arranging for a series of VA examinations in support of her claim. Although the first of those examinations was inadequate for rating purposes, the deficiencies contained therein were effectively remedied in accordance with the Board's latest remand. Specifically, the AOJ complied with the Board's request to have a clinician review the record and then opine as to whether Veteran's service-connected disabilities prevented her from engaging in substantially gainful work prior to May 31, 2007. The Board acknowledges that the requested opinion was rendered by a physician and not by a licensed social worker, as requested in the July 2013 remand. Nevertheless, the opining clinician had specialized training in geriatric medicine and, thus, was at least as well-qualified as a standard social worker to assess the occupational functioning of this World War II-era Veteran. Moreover, while the clinician documented her findings in an "Aid and Attendance or Housebound Examination" report, she noted at the conclusion of those findings that she had performed a social and industrial survey, as expressly requested in the July 2013 remand. See September 2013 VA Aid and Attendance or Housebound Examination at p. 13. Further, while initially lacking access to the contents of the Veteran's claims file, and that of her late husband, the clinician subsequently obtained such information and reviewed it in its entirety prior to completing her report. See September 19, 2013, Addendum to VA Aid and Attendance or Housebound Examination. The Board acknowledges that, despite addressing the effects of each service-connected disability on the Veteran's pre-May 31, 2007, employability, the above clinician declined to opine as to the collective occupational impact posed by those disabilities during the requisite time period. Nevertheless, VA's duty to assist in a claim for TDIU - or, in this case, a claim for an earlier effective date of TDIU - "does not require obtaining a single medical opinion regarding the combined impact of all [of a veteran's] service-connected disabilities." See Geib v. Shinseki, --- F.3d ----, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (holding that VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Moreover, the United States Court of Appeals for Veterans Claims has recently held that "a combined-effects medical examination report or opinion is not required per se by any statute, regulation, or policy to properly decide entitlement to TDIU for a veteran with multiple service-connected disabilities." See Floore v. Shinseki, --- Vet.App. ----, No. 12-2017, WL 5913227 (November 5, 2013). To the contrary, the need for such an examination report or opinion "with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by [the AOJ] or the Board." Id. Here, for the reasons set forth below, the Board finds that no such combined-effects examination or opinion is necessary to decide the Veteran's claim. Furthermore, the Board finds that the report of the September 2013 examiner, when viewed in its entirety, has substantially complied with the terms of the most recent remand. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293-294 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). Similarly, the Board finds that its other July 2013 remand directives have met with substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Indeed, the AOJ has made reasonable efforts to ensure that the record is complete for rating purposes prior to readjudicating the Veteran's appeal in an October 2013 Supplemental Statement of the Case (SSOC). Moreover, in that readjudication, the AOJ has expressly considered the September 2013 VA examiner's report and addendum opinion, which together comprise the only substantive additions to the record since the last adjudication. Accordingly, absent any showing to the contrary, the Board is satisfied that there has been substantial compliance with the terms of its latest remand, including its instruction to readjudicate the Veteran's claim in the October 2013 SSOC. See Stegall, 11 Vet. App. at 271. As a final matter regarding the duty to assist, the Board notes that, while the Veteran has not testified in support of her appeal, she has expressly waived her right to a hearing before a Veterans Law Judge. Accordingly, the Board finds that a remand for such a proceeding would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken. See Sondel v. West, 13 Vet. App. 213 (1999). Nor should any other evidentiary development be undertaken in this long-pending appeal. Through the course of five remands, the Veteran has had the opportunity to meaningfully participate in the adjudication of her claim for an earlier effective date of entitlement to TDIU such that appellate review of that issue may finally proceed. See Washington v. Nicholson, 21 Vet. App. 191 (2007). II. Merits of the Appeal The Veteran contends that her service-connected GERD, IBS, and joint disorders have precluded her from working since before May 31, 2007, when her currently assigned TDIU benefits took effect. As such, she maintains that an earlier effective date for the award of such benefits is warranted. The effective date for the grant of VA compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2013). In this case, it is undisputed that the Veteran's initial claim for TDIU was received on November 27, 2006, prior to the date such benefits took effect (May 31, 2007). Accordingly, her appeal turns on whether she was entitled to those benefits on or before the date of her initial claim. Id. Establishing entitlement to TDIU requires evidence of one or more service-connected disabilities that preclude a veteran from obtaining or maintaining gainful employment consistent with her education and work experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Moreover, to prevail in a claim for schedular TDIU, a veteran must show that she has either (a) a single service-connected disability ratable at 60 percent or higher, or (b) two or more service-connected disabilities, at least one of which is ratable at 40 percent or higher, with sufficient additional disability to bring her combined total rating to a minimum of 70 percent. 38 C.F.R. § 4.16(a) (2013). Here, the record reflects that, prior to May 31, 2007, the Veteran's combined disability rating totaled only 60 percent. Significantly, however, the disorders encompassed in that combined rating all shared a common etiology - having resulted from the same in-service injury -- and, thus, comprised a single service-connected disability for VA purposes. Accordingly, the Board finds that the Veteran met the threshold schedular criteria for TDIU as of the effective date of her 60 percent combined rating (i.e., on May 2, 2004). 38 C.F.R. § 4.16(a). However, that does not necessarily mean that she was entitled to an award of TDIU benefits as of that date. Rather, to establish retroactive TDIU entitlement - and thereby prevail in her appeal for an earlier effective date - the Veteran must also show that, as of May 2, 2004 (or, indeed, at any time prior to May 31, 2007), her service-connected disabilities, in whole or in part, precluded gainful employment. In an effort to assist the Veteran with meeting this evidentiary burden, the Board elicited a VA retrospective medical opinion in February 2013. However, the February 2013 VA examiner erroneously discounted the Veteran's GERD in assessing the impact of her service-connected disabilities on her employability for the period before May 31, 2007. Moreover, in determining that, prior to that date, the Veteran "would have been able to perform duties associated with sedentary employment," the February 2013 examiner declined to specify whether such duties were tantamount to gainful employment, or merely marginal work. Moore v. Derwinski, 1 Vet. App. 356 (1991). That examiner further indicated that he could not determine with any degree of certainty whether the Veteran would have been considered totally unemployable prior to 2007. In light of the above examiner's evidentiary omissions, and the inherently speculative nature of his February 2013 findings, the Board determined that such findings were inadequate for rating purposes and that an additional opinion was therefore needed. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (addressing the low probative value of speculative medical opinions); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The Board further determined that this new opinion should be predicated on a social and industrial survey, which would retroactively evaluate the occupational impact of the Veteran's GERD and other service-connected disorders prior to May 31, 2007. Pursuant to the Board's remand, the Veteran was afforded a September 2013 clinical evaluation and records review, which was styled as an "Aid and Attendance or Housebound Examination," but was functionally equivalent to a social and industrial survey. Indeed, this was apparent from the notation on the final page of the September 2013 examining clinician's report¸ indicating that "[t]he entire claims files (i.e., both Veteran's and her husband's claims files and any medical records contained in Virtual VA) [had been] reviewed . . . in conjunction with the social and industrial survey." See September 2013 VA Aid and Attendance or Housebound Examination at p. 13. While thus complying with the Board's remand directives, the September 2013 clinician nonetheless reached conclusions that resembled those of her non-compliant predecessor. Indeed, as with the February 2013 VA examiner, the September 2013 clinician opined that the Veteran's service-connected disabilities did not preclude sedentary work for the period prior to May 31, 2007. Significantly, however, the September 2013 clinician went one step further than her predecessor by finding that the Veteran had remained capable of gainful, as opposed to merely marginal, employment, during the time period in question. In arriving at this conclusion, the September 2013 clinician expressly considered the pertinent medical evidence of record, including the outpatient treatment and examination reports generated from October 24, 2001, to September 11, 2013. The September 2013 clinician also addressed the Veteran's lay assertions of restricted mobility, which had progressively worsened over time. Nevertheless, that clinician noted that, during the past year, the Veteran had undertaken multiple long-distance trips and that, even at present, she remained capable of traveling beyond her domicile with the aid of a wheelchair and right knee brace. That clinician further observed that only one of the Veteran's service-connected disorders - her residuals of right knee injury - was productive of "functional impairment to which disability was attributable." However, that clinician concluded that neither that disorder nor any of the Veteran's other individual service-connected disabilities had "impact[ed] her ability to engage in substantially gainful employment prior to 5/31/2007 in light of her work history and level of education." In support of her conclusion with respect to each such disability, the clinician provided the following rationale: The [V]eteran [wa]s able to perform a sedentary job given her education in business administration and diploma working in the front office of a doctor's office. She worked as a hardware store manager in the past. The [V]eteran was able to work in several different jobs and take care of her elderly parents who lived with her until they passed away (1978, 1984) and her terminally ill husband who passed away in 2003. She also reported that between 2003-2012 she took care of her sisters who passed away in 2004 and 2012. She has reported that she was able to decorate and paint her house walls and wall paper them until her shoulder bothered her in 2000. She reports that she sewed her house drapes and valences and even made pieces of furniture by herself (a large wall unit that needed 3 men to install). VA Medical record dated 3/2004 noted [that the Veteran] "goes to Edison college learning about computers [and] has a lot of travel plans for remainder of yr. [sic]" The Veteran has been duly apprised of the above clinician's findings, but has declined to submit any medical evidence in response. Moreover, the representative for the Veteran has expressly indicated that she does not intend to provide any additional evidence or argument in support of her appeal. See October 2013 Expedited Processing Request. Nevertheless, the Board acknowledges that, following the receipt of this written request, the representative has directed the Board to consider Internet-based medical literature, which addresses the "[c]ardiovascular side effects of [nonsteroidal anti-inflammatory drugs]." See November 2013 Appellate Brief (citing the results of an October 2006 Harvard News Study available at http://www.health.harvard.edu/press_releases/nsaid-side-effects). However, this medical literature has no direct bearing on the Veteran's service-connected disabilities, and most certainly does not pertain to their individual or combined impact on her pre- May 31, 2007, employability. It follows that such literature, standing alone, is not pertinent to her appeal. Accordingly, the Board finds that, to the extent relevant medical evidence exists but has not yet been obtained, the responsibility lies with the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is "not a one-way street"). Having thus ruled out the existence of any countervailing medical opinions, the Board finds that the September 2013 clinician's report is competent and credible and, thus, entitled to significant evidentiary weight. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). In this regard, the Board considers it significant that the September 2013 clinician not only interviewed the Veteran and reviewed the evidence of record in full but also supported her conclusions with a detailed rationale. As such, that clinician effectively demonstrated a robust understanding of the pertinent facts of this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion depends on whether the opining clinician is fully informed of the pertinent facts, i.e., history, of the case). Moreover, the Board is satisfied that the September 2013 clinician's report has described the pre-May 31, 2007, occupational impact of the Veteran's service-connected disorders in sufficient detail to allow for a fully informed evaluation of her claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding an examination report adequate where it describes the disability in sufficient detail to make a fully informed decision). The Board recognizes that the above clinician's report does not expressly assess the cumulative impact of the Veteran's service-connected disorders on her ability to work before May 31, 2007. Nevertheless, by systematically describing the effect of each disorder on the Veteran's pre-May 31, 2007, occupational functioning, the report provides sufficient medical evidence for the Board to arrive at such an assessment on its own. This is ultimately the Board's determination to make. Indeed, as noted in the preceding section, while the Board may elicit an examination or a medical opinion regarding the combined impact of a veteran's service-connected disabilities, no such "combined-effects medical examination report or opinion" is required to adjudicate a TDIU claim. See Geib v. Shinseki, --- F.3d ----, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013); Floore v. Shinseki, --- Vet.App. ----, No. 12-2017, WL 5913227 (November 5, 2013). Moreover, to impose such a requirement would be inconsistent with the applicable statutory and regulatory provisions, which "place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib, supra (citing 38 U.S.C.A. § 5103A(d)(1) and 38 C.F.R. § 4.16(a)). Accordingly, having established that the September 2013 clinician's opinion is not only probative with respect to the Veteran's TDIU claim, but is also a sufficient medical basis for adjudication of that claim, the Board finds that opinion, in tandem with the other pertinent evidence of record, supports a denial of the benefits sought on appeal. In reaching this conclusion, the Board is mindful of the Veteran's own assertions as to the longstanding occupational impairment posed by her service-connected disorders, particularly those that impact her right lower extremity. While a lay person, the Veteran is competent to attest to her own perceptions of the effects of such disorders on her ability to work. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience). Nevertheless, the Board has an obligation to weigh the Veteran's assertions against competing evidence of record, including her own contradictory admissions, which were documented in the September 2013 examination report. Indeed, by conceding that she was able to care for her late husband and sisters, travel long distances, look after her own financial affairs, and otherwise engage in activities of daily living prior to May 31, 2007, the Veteran effectively undermined her current contentions of total occupational impairment during that time period. Moreover, the Board observes that the mere fact that the Veteran had stopped working and, indeed, was already of retirement age prior to May 31, 2007, does not mean that she was entitled to a total disability rating before that date. To the contrary, such factors as advancing age and nonservice-connected disability have no place in determinations of TDIU entitlement. See 38 C.F.R. §§ 3.341(a), 4.16(a). Accordingly, the Board rests its determination of the Veteran's TDIU entitlement on an independent assessment of the record, which, in its judgment, fails to show that such entitlement existed prior to May 31, 2007. Therefore, while mindful of the benefit of the doubt doctrine, the Board finds that rule is not for application and the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than May 31, 2007, for a total disability rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs