Citation Nr: 1340968 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-18 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than September 21, 1999, for the award of a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to March 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). In his April 2010 substantive appeal, the Veteran requested a hearing before a member of the Board, which was scheduled in April 2013. The Board notes that the Veteran failed to appear for such hearing, and he has not requested that such hearing be rescheduled. The Board therefore considers his April 2010 hearing request to be withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDINGS OF FACT 1. The Veteran's October 2000 formal claim for a TDIU was received by the RO on October 27, 2000. 2. The Veteran's service-connected disabilities were first objectively shown to render him unable to secure and follow substantially gainful employment as of September 21, 1999. 3. Prior to September 21, 1999, the Veteran was service connected for right knee chondromalacia, status post right femur fracture with degenerative joint disease rated 30 percent disabling. 4. Since September 21, 1999, the Veteran has additionally been service-connected for reflex sympathetic dystrophy of the right lower extremity rated 60 percent disabling; his combined disability evaluation is 70 percent. CONCLUSION OF LAW The criteria for an effective date earlier than September 21, 1999 for the grant of TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400(o) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Generally, the effective date of an award will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. TDIU is considered a claim for increased evaluation, and for such claims, an effective date of the earliest date on which factual entitlement to the benefit sought is shown is allowable, if the claim is received within one year from factual entitlement. 38 C.F.R. § 3.400(o)(2); Hurd v. West, 13 Vet. App. 449 (2000). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). The record reflects that the Veteran filed a claim for TDIU in October 2000, shortly after the RO issued an October 2000 rating decision which continued a 30 percent disability rating for a right knee disability and granted the Veteran entitlement to service connection for right lower extremity disability, assigning 60 percent disability rating effective September 21, 1999 (date of claim); giving the Veteran a combined disability rating of 70 percent. The Veteran's claim for a TDIU was granted in an April 2002 rating decision, effective September 21, 1999, the date of his claim for entitlement to service connection for a right lower extremity disability, which is also the same day the Veteran met the schedular criteria for a TDIU. In his March 2007 claim, and subsequent notice of disagreement and substantive appeal, the Veteran argued that he was entitled to an earlier effective date for the award of a TDIU, as he had been totally disabled since October 1990. While the above may be true, and that the Veteran was disabled in 1990, upon review of the evidence, the Board notes that the Veteran submitted a claim for a higher rating for his service-connected right knee disability in September 1998. While he did indicate that this disability had increased in severity, he did not assert unemployability due to such disability. Additionally, of record is a letter from the Veteran's private physician, Dr. L.C.S., dated January 1995 (date stamped as received by the RO on September 21, 1999), which states that at that time, the Veteran was "completely disabled as a result of war and motorcycle related injuries to his legs, back and head." While this letter seems to indicate that the Veteran suffered from service-connected bilateral leg, back, and head injuries, the Board notes that this is not the case and that in January 1995, the Veteran was only in receipt of service-connected benefits for his right knee disability, rated at 30 percent. There is no other communication of record, prior to September 21, 1999, reflecting intent to file a claim for a TDIU. The Board acknowledges that the Veteran did file a previous claim for a TDIU in July 1994, which was subsequently denied in a September 1995 rating decision. The Board notes that the September 1995 rating decision did grant the Veteran non-service-connected pension benefits, based on a finding that he was permanently and totally disabled due to a non-service-connected seizure disorder, as well as various other non-service-connected medical conditions caused by a postservice motor vehicle accident. There is no indication from the record that the Veteran appealed the September 1995 denial of entitlement to a TDIU, and as such that decision has become final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 , 20.302, 20.1103. The finality of the RO's September 1995 decision precludes an effective date prior to that date. The Board notes that the finality of the September 1995 decision could be vitiated by a finding of clear and unmistakable (CUE) in that decision. Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates). However, no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but as to how it is the kind of error that, if true, would constitute CUE on its face; persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Here, the arguments of the Veteran do not actually allege CUE, much less, reflect the type of specificity needed to sufficiently raise such a claim. Further, the Board finds that it is not factually ascertainable that an increase in disability to support the award of a TDIU had occurred within one year of the September 21, 1999 effective date currently assigned for the Veteran's grant of a TDIU. The Board notes that prior to September 21, 1999, the Veteran was in receipt of service connection for a right knee disability, rated at 30 percent. The Veteran filed a claim for a higher rating for his service-connected right knee disability in September 1998, which, as noted above, was denied in the October 2000 rating decision. A review of the evidence between September 1998 and September 1999 indicates that the Veteran received treatment for his right knee disability, but that such disability had not progressed to such a severity as to cause him to be unemployable. Further, while the Veteran has reported that he had not worked since 1990, prior to the September 21, 1999 grant of service connection for his right lower extremity disability, the evidence shows that his unemployment was the result of various non-service-connected disabilities for which he was receiving non-service-connected pension benefits. The Board cannot use these problems as the basis to find TDIU caused by service-connected disabilities. There is no evidence of record showing that the Veteran's service-connected disabilities caused him to be unemployable prior to September 21, 1999. In sum, prior to filing the September 21, 1999 claim for entitlement to service connection for a right lower extremity disability, there was no pending claim pursuant to which a TDIU could have been granted or evidence during the one-year period prior to that date from which it is factually ascertainable that an increase in disability to support a TDIU had occurred. The Board again emphasizes that the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the award of a TDIU earlier than September 21, 1999, is assignable, the claim on appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive, the claim must be denied due to a lack of legal merit). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The resolution of the Veteran's appeal for an earlier effective date turns on the law as applied to the undisputed facts in this claim regarding the date of receipt of claim and date entitlement arose. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis, 6 Vet. App. at 430 (1994). ORDER An effective date earlier than September 21, 1999, for the award of a TDIU, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs