Citation Nr: 1605411 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 09-26 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than July 31, 2006, for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service from February 1994 to April 1998. This appeal comes before the Board of Veterans Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, which, in pertinent part, granted TDIU effective July 31, 2006. This issue was before the Board November 2013 when it was remanded for additional development. The Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for a Travel Board hearing in February 2011. He did not report for this hearing and did not request it to be rescheduled. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. In a September 2004 rating decision, the RO granted the Veteran's original claim of service connection for psychiatric and knee disabilities. The Veteran was assigned a combined disability of 50 percent, effective February 27, 2004, and that decision became final. 2. The Veteran's increased rating claim was received on July 31, 2006 and a formal claim of entitlement to TDIU was received on July 31, 2007. No claim for increased rating or TDIU was filed prior to July 31, 2006. 3. Prior to July 31, 2006, the Veteran's combined disability evaluation was 50 percent and his service-connected disabilities were not sufficient by themselves to preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for an effective date for TDIU prior to July 31, 2006, have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In this case, the Veteran's claim for TDIU was granted in the rating decision on appeal. He then appealed the downstream issue of the effective date that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to these issues. The record also reflects that all pertinent available evidence has been obtained as to this claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The claims turn on when VA received a claim, when evidence was received following rating decisions, and what that evidence shows. Thus, any additional medical records are not relevant to this issue. As the record contains sufficient evidence on which to decide this claim, further development is not warranted and VA has complied with its duty to assist the Veteran for this claim. Accordingly, the Board will address the merits of the claim. Laws and Regulations Except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. Under 38 C.F.R. § 3.157(b)(2), the date on which evidence is received from a private physician or layman is the date which will be used for effective date purposes. VA is required to look to all communications from the appellant that may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See Servello v. Derwinski, 3 Vet. App. 196 (1992). All that is required is that a communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran seeks an effective date earlier than July 31, 2006, for the award of TDIU. Specifically, he maintains that he is entitled to an effective date of October 25, 2005, the date he stopped working. See Notice of Disagreement received in January 2009. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more. If there are two or more such 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). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the veteran's education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). An extra-schedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). By rating decision dated in September 2004, the RO awarded service connection for adjustment disorder with depressed mood (30 percent), right meniscal tear status post-right meniscectomy (10 percent) and chondromalacia left patella (10 percent). The Veteran's combined disability rating was 50 percent, effective February 27, 2004. The Veteran was notified of this decision in October 2004. He did not appeal and the decision is now final. On July 31, 2006, the RO received the Veteran's claim for increased ratings for his service-connected psychiatric and knee disabilities. He stated that his employment had been "disrupted" by his disabilities and he was currently unemployed. There is no evidence that he filed a claim, formal or informal, for increased rating, prior to this date. In a May 2007 rating decision, the RO (in pertinent part) awarded an increased 70 percent rating for the Veteran's service-connected psychiatric disability, recharacterized as posttraumatic stress disorder with bipolar disorder, effective July 31, 2006. The RO also reduced the rating for chondromalacia left patella to 0 percent. The Veteran's combined disability rating was 80 percent, effective July 31, 2006. On July 31, 2007, the RO received the Veteran's formal claim of entitlement to TDIU. Prior to leaving employment in October 2004, the Veteran worked as a carpenter, laborer and driver. Review of the claims file shows that the July 31, 2006, informal claim is the earliest pending TDIU claim of record. The evidence of record does not show that the Veteran filed a formal or informal claim for TDIU after the September 2004 rating decision and before the July 31, 2006, claim. However, the Board notes that assignment of an effective date for TDIU is not based solely on the date of receipt of the TDIU claim. Consideration must also be given to whether there is entitlement to the benefit sought; however, the Board finds that there is insufficient evidence that the Veteran was unable to obtain substantially gainful employment during this timeframe. See 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400. Review of the claims file shows that it was not until July 31, 2006, that the Veteran met the schedular requirements assigning a TDIU under 38 C.F.R. § 4.16(a). Prior to this date, the Veteran's combined disability rating only amounted to a 50 percent rating, as noted above. The criteria for the assignment of a TDIU under 38 C.F.R. § 4.16(a) were not met prior to July 31, 2006. Furthermore, there is no persuasive evidence that the Veteran was precluded from engaging in gainful employment solely due to his service-connected disabilities prior to July 31, 2006. Thus, even if an informal claim had been filed, an earlier effective date is not warranted because entitlement did not arise prior to the assigned date of July 31, 2006. While the Veteran was awarded Social Security Administration disability benefits effective October 25, 2005, the medical evidence of record does not indicate that his service-connected disabilities were of such severity to render him unable to secure and follow substantial gainfully employment. Notably, a November 2005 private psychiatric assessment states that the Veteran was currently attending apprentice school for carpentry, denied suicidal or homicidal ideation, and exhibited a logical, coherent and goal directed thought process. The examiner noted that the Veteran was physically healthy, cognitively intact and his insight, judgment and impulse control appeared adequate. Accordingly, an effective date prior to July 31, 2006, for the award of TDIU is not warranted. In reaching the decisions, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the Veteran's claim, such rule is not for application. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An effective date earlier than July 31, 2006, for the award of a TDIU is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs