Citation Nr: 1607599 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 00-10 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date prior to April 16, 1998, for the grant of a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case has a long and complicated procedural history. A May 2008 Board decision found that April 16, 1998 was the earliest effective date available for a grant of TDIU. In a March 2011 decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's May 2008 decision to the extent that it denied entitlement to an effective date earlier than April 16, 1998, for the grant of TDIU and for an earlier effective date for the assignment of a 60 percent rating for a low back disability. The Court, citing Bradley v. Peake, 22 Vet. App. 280, 294 (2008), also raised the issue of whether the Veteran was entitled to special monthly compensation (SMC) at the housebound rate pursuant to 38 U.S.C.A. § 1114(s). In a February 2012 rating decision, the RO granted SMC at the housebound rate, effective January 26, 2001. In May 2014, the Board again denied entitlement to an effective date earlier than April 16, 1998 for TDIU. The Board also found that the February 2012 grant of SMC from January 26, 2001 represented a full grant of the benefits sought on appeal, and that the issue was no longer before the Board. The Veteran appealed the May 2014 Board decision regarding entitlement to an earlier effective date for TDIU to CAVC. The Veteran did not appeal the Board's May 2014 decisions regarding the effective dates and ratings assigned for his low back disability or the finding that SMC was no longer before the Board. In a June 2015 Joint Motion for Remand (JMR), the parties determined that the Board erred in its May 2014 TDIU effective date analysis by requiring the Veteran to submit new and material evidence of both an increase in his back disability and for his TDIU claim. The JMR specifically stated "in sum, on remand, the Board should determine whether Appellant is entitled to TDIU from November 21, 1995, to April 15, 1998, pursuant to 38 C.F.R. § 4.16(b)." However, the directive commanded "WHEREFORE, the parties move the Court to enter an order vacating in part the May 21, 2014, Board decision to the extent that it denied entitlement to an effective date prior to April 16, 1998, for the grant of TDIU and remanding that issue for further adjudication consistent with this motion." As such, the Board will address whether entitlement to TDIU is warranted for any date prior to April 16, 1998. FINDINGS OF FACT 1. The ratings assigned for the Veteran's service-connected disabilities did not combine to meet the minimum percentage requirements under 38 C.F.R. § 4.16(a) prior to April 16, 1998. 2. Entitlement to TDIU was implicitly denied in rating decisions dated in: November 1973, July 1976, and November 1977; the Veteran did not timely appeal or continue these denials. 3. Prior to April 16, 1998, the Veteran was service connected for a low back disability (rated 40 percent from November 21, 1995, and 10 percent prior), and a psychiatric disorder (rated 30 percent from August 28, 1997). From August 28, 1997, he had a combined rating of 60 percent; from November 21, 1995 to August 28, 1997, he had a combined 40 percent rating; and prior to November 21, 1995 he was rated 10 percent disabled. 4. The Veteran an unknown number of years of formal education (various records list 9th, 10th, and 11th grade completed), and eventually received a GED. He was noted to have borderline intelligence in 1992 and 1998 testing. He last worked full time in September 1971. Although he participated in vocational rehabilitation, and took some ongoing educational courses, it does not appear that he completed a degree of any sort. 5. Resolving reasonable doubt in the Veteran's favor, and taking into account his educational background, intellect, and service-connected disabilities, the Veteran was unable to obtain and maintain gainful employment from November 21, 1995 to the present. CONCLUSION OF LAW The criteria for TDIU from November 21, 1995 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.16(a), 4.16(b) (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. The Board also notes the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claims were filed prior to the enactment of the VCAA. Additionally, the RO initially adjudicated the claims prior to the enactment of the VCAA. Although pre-adjudicatory VCAA notice was not possible, the Court has held that, in cases such as this one, the Veteran has the right to subsequent content-complying notice. See Pelegrini, 18 Vet. App. at 120. The record reflects that the Veteran was provided all required notice for the claims in letters mailed in March 2006 and August 2006. Following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims most recently in August 2013 (with the May 2014 Board decision and subsequent CAVC decisions thereafter). See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Moreover, the Veteran's attorney has shown actual knowledge of how to substantiate the claims for earlier effective dates through argument submitted to the Board and to the Court. 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 claims; the Board is also unaware of any such evidence. The claims turn on when VA received claims, when evidence was received following rating decisions, and what that evidence shows. Thus, any additional medical records are not relevant to these issues. As the record contains sufficient evidence on which to decide these claims, further development is not warranted and VA has complied with its duty to assist the Veteran for these claims. Accordingly, the Board will address the merits of these claims. Laws and Regulations 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16 (b). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). For the period prior to April 16, 1998 on appeal, the Veteran is service-connected for low back disability (10 percent from April 1971, 40 percent from November 21, 1995, and 60 percent from April 16, 1998) and a psychiatric disorder (30 percent from August 28, 1997). He has a combined 60 percent rating from August 28, 1997. The Veteran's low back disability and psychiatric disability are not considered part of a common etiology or single accident. 38 C.F.R. § 4.16(a) (2). . A TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Furthermore, a TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation therefore apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). 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 the application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997). Factual Background and Analysis In an effort to untangle the history of this claim, the Board will begin by listing the pertinent history for this claim for an earlier effective date for TDIU, and will then refer back to this evidence in the analysis. The April 1971 claim for service connection for a low back disability is not contained in the record. However, a June 1971 rating decision granting service connection for a low back disability provides the date of the claim. In this June 1971 rating decision, the Veteran was provided a 10 percent disability rating, effective April 21, 1971. In May 1973, the Veteran submitted a claim for an increased rating for his service-connected back condition. He also indicated that he had to give up his job because of his back and that he was now totally unable to work because of his service-connected back condition. In November 1973, the Veteran submitted medical evidence showing that he was hospitalized in late October 1973 for his back. A November 1973 "Deferred or Confirmed Rating Decision" continued the 10 percent rating for the Veteran's low back disability. The Veteran was notified of this decision in a December 3, 1973 letter, which stated that no change was warranted based on the evidence and that his back condition would be continued to be evaluated as 10 percent disabling. Just over a year later, on December 18, 1974, the Veteran requested a reevaluation and increased rating for his back injury, because it has "gotten progressively worse." He stated he was forced to quit his job as a bread wrapper because he could not stand or sit for lengthy periods. He stated he was last able to work in September 1973, and he was awarded Social Security Disability Income (SSDI) due to his back injury. In April 1975, the Veteran was informed that his increased rating claim for his lumbar spine was denied because he failed to report for a scheduled VA examination. In December 1975, the Veteran resent the October 1973 records regarding his 8 day hospitalization for his low back. In March 1976, the Veteran provided a statement that his back disability had worsened, and he wished to be re-evaluated. He re-injured his back in September 1971. He provided dates for treatment for his back in 1972, 1973, 1974 and 1975, all for long periods of time. In May 1976, the Veteran was afforded a VA spine examination. In July 1976, the Veteran's 10 percent rating for his back disability was continued, and he was denied entitlement to service connection for schizophrenia. In February 1977, the Veteran stated that he "would like to appeal the decision handed down by the compensation board." A March 1977 letter asked the Veteran to specify which issue he wished to appeal, or if he wished to appeal both issues, addressed in the February 1977 rating decision. He was asked to respond to the request within 30 days. A May 1977 medical record submitted by the Veteran addressed his psychiatric disorder, and included that he was "supposedly being detained in jail pending a trial." In September 1977, the Veteran submitted a request to be evaluated for his back, nerves and knees. In a November 1977 rating decision, the Veteran's low back disability rating of 10 percent was continued and his claims for service connection for a psychiatric disorder and knee disorders were denied. In January 1980, the VA received records from the Social Security Administration (SSA). The records showed that the Veteran was found disabled from September 9, 1971, for schizophrenic reaction, paranoid type; gout; and a history of lumbosacral injury. The records included medical records relied on by SSA in determining the Veteran's disability. It was noted that the decision was provided in March 1975. In February 1980, the Veteran requested an examination for his spine disability. In February 1980, the VA informed the Veteran that they did not provide evaluations upon request, and that he should submit a statement from a physician that his condition was worsened. A barely legible note from March 1994 noted the Veteran "completed 6 grade," joined the Army from 1965 to 1967, did not use drugs or alcohol, and had employment working for a bakery and in a hardware store. He was noted to have been hurt on the job and receiving Worker's Compensation and SSDI. It is not clear who wrote the note, but it refers to the Veteran in the third person. A May 1994 letter from vocational rehabilitation informed the Veteran that he failed to provide information regarding his work history as requested. As such, based on a review of his VA records, he was found to not be entitled to vocational rehabilitation benefits because there was no evidence of a serious employment handicap in his file and he had not provided any employment information as requested. He was encouraged to submit information to support his claim. An almost identical letter was sent to him in July 1994 as well. On November 21 1995, the Veteran requested an increased rating for his lumbar spine disability, and stated that he was receiving SSA benefits because he was 100 percent disabled. He reported he had not worked since 1974, and believed his back was "totally disabling." A May 1996 rating decision continued a 10 percent rating for his lumbar spine disability. On February 5, 1997, the Veteran requested to reopen his low back disability claim, because he wished for a higher rating. In April 1997, the Veteran was afforded a VA spine examination. He reported he was working for a company when he had a severe fall and that he was given 100 percent Worker's Compensation by the company, and also 100 percent disability from SSA. His forward flexion was limited to 30 degrees. There was no objective evidence of pain with motion, and the Veteran refused to move very much. No radiculopathy was demonstrated on evaluation. The examiner noted that he was "examined at maximum disability as per the DeLuca memo. Patient apparently did well and was able to work until his fall at the private concern in 1971." Also in May 1997, the Veteran submitted VA records of a hospitalization from April to May 1997, for psychiatric treatment and his low back disability. An MRI performed during the hospitalization showed a disc bulge without cord impingement. A July 1997 rating decision provided a 20 percent rating for the Veteran's lumbar spine, effective February 17, 1997 (recorded as February 5, 1997 on the codesheet). In August 1997, the Veteran requested an increased rating for his low back disability. He again stated that his disability had worsened. In another August 1997 statement, the Veteran requested an increased rating for his back and service connection for psychosis. In December 1997, the VA received records regarding a court case for Worker's Compensation benefits. The January 1974 decision showed the Veteran was receiving permanent disability (100 percent) due to a September 9, 1971 injury. He slipped and fell at work sustaining accidental injuries to his low back and "neuropsychiatric in nature involving post concussional syndrome, right sciatica neuritis and paranoid schizophrenia." In a March 1998 rating decision, the Veteran was provided a 40 percent rating for his low back disability, effective February 5, 1997 (noted to be his "prior claim" date). His claim for service connection for a psychiatric disorder was denied. On April 16, 1998, the Veteran requested a 60 percent rating for his low back disability. He reported he was in constant pain daily. He requested service connection for his psychiatric disorder and his knees. In a November 2000 rating decision, the Veteran's claim for TDIU was denied. In February 2001, the Veteran's representative stated he provided a notice of disagreement with the November 2000 rating decision in December 2000, and that December 2000 and January 2001 medical records supported this with statements that the Veteran was unemployable due to his back and knees. In a July 2001 rating decision, the RO provided a 60 percent rating for the Veteran's lumbar spine, effective May 29, 1998 and granted entitlement to TDIU effective May 29, 1998. May 29, 1998 was noted to be the date of the claim. A May 2008 Board decision provided an April 16, 1998 effective date for the grant of TDIU and for the 60 percent rating assigned for the Veteran's low back disability. These ratings were appealed to CAVC. In the interim the RO requested that the Director of Compensation review the Veteran's claim for consideration of entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b). In March 2013, the Director noted that prior to April 16, 1998 the Veteran was rated 40 percent for his back disability and 30 percent for his psychiatric disorder, for a combined 60 percent rating. He noted that an April 1997 VA examination showed he had forward flexion to 30 degrees, and x-ray evidence of degenerative joint disease. Additionally, records showed the Veteran was in receipt of SSA benefits from September 1971, but that had a Functional Assessment Inventory where the Veteran indicated he was able to walk and travel around town without difficulty, and that he could perform jobs require no lifting or little lifting. A January 2012 VA examination noted the Veteran was unemployable since 1974 due to his knees, and another opinion noted he was disabled since leaving service due to his psychiatric disability. The Director noted a 1998 vocational assessment found the Veteran capable of performing the desired occupation of paralegal. The Director found that entitlement to TDIU on an extraschedular basis was denied. A May 2014 Board decision provided a 40 percent evaluation for low back disability effective November 21, 1995, and continued the Veteran's 60 percent rating from April 16, 1998. The decision also denied an earlier effective date than April 16, 1998 for entitlement to TDIU. The Veteran appealed the effective date of his TDIU claim to CAVC, and this issue has been returned to the Board for additional consideration of an extraschedular rating. Analysis of the Date of Claim Obviously, the Veteran first indicated to the VA that he was unemployed, and it was related to his low back disability, in May 1973. In November 1973, the RO denied a rating in excess of 10 percent, and informed the Veteran of this denial on December 3, 1973. The Board finds that this continuation of a 10 percent rating for his lumbar spine also represents an implicit denial of entitlement to TDIU. Although the November 1973 continuation of the 10 percent rating did not specifically address a claim for TDIU (Rice was not decided until 2009), this clearly implies that a higher, 100 percent rating based on TDIU was not applicable/warranted. It is well established that in certain circumstances, pursuant to the implicit denial doctrine, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The implicit denial doctrine was first pronounced in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In that case, the Federal Circuit held that: Where the veteran files more than one claim with the [regional office] at the same time, and the [regional office]'s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. Id. at 1261. Shortly after the decision in Deshotel was issued, the Court interpreted the application of the implicit denial doctrine. In Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007), the Court held that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." The Federal Circuit again confronted the implicit denial doctrine in Adams. In that case, the appellant argued that the Court misinterpreted the implicit denial doctrine. The Federal Circuit explained that the implicit denial doctrine, as outlined in Deshotel and Ingram, "reflects an appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided." Id. at 963. In response, in Cogburn v. Shinseki, the Court clarified the matter by stating, from Jones v. Shinseki, 619 F.3d 1368, 1372 (Fed. Cir. 2010), four factors that must be considered when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Here, although the November 1973 decision did not explicitly discuss entitlement to TDIU under 38 C.F.R. § 4.16, the RO decision addressed the Veteran's claim for an increased rating for his low back disability (his only service-connected disability) in a manner sufficient for the Veteran to deduce that his claim for TDIU was adjudicated. With regard to the first factor, the relatedness of the claims, to understand this point, one need only look at the nature of a TDIU claim. "[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather ... an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran stated in May 1973 that his service-connected disability had worsened; and that he was totally disabled due to service-connected disability. Thus, in light of Rice and the timing of the application, the claims for increased rating and for TDIU were intertwined. With regard to the second factor, "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied," the RO's failure to explicitly adjudicate entitlement to a TDIU rating may result in an "implicit denial" in certain circumstances. Locklear v. Shinseki, 24 Vet. App. 311, 316 (2011) (citing Ingram, 21 Vet. App. at 248). "The award of a disability rating less than 100% generally provides notice as to how the Secretary has rated a claimant's condition and serves as a final decision, if unappealed, with regard to any higher rating associated with the underlying disability, including TDIU." See Locklear. Here, when deciding whether higher ratings were warranted, the RO considered all evidence, to include the effect on occupational functioning, and determined that ratings higher than those assigned at that time, were not warranted. In sum, this initial May 1973 claim of entitlement to TDIU was implicitly denied in November 1973. The Veteran did not submit a statement that could be considered a notice of disagreement, or new and material evidence, within one year of his notice of the November 1973 denial. Just over a year later, he again submitted a claim for an increased rating for his low back disability. Applying the same implicit denial analysis to the records between 1973 and 1995, the Board finds that there are no rating decision addressing the Veteran's low back increased rating claims, which implicitly deny the Veteran's claim for TDIU (as the Veteran remained singularly service-connected for his low back disability during this time), which were appealed by virtue of a timely notice of disagreement, or which were continued on appeal by virtue of continued submission of new and material evidence within a year of dispositions. The April 1975 denial was followed up with a December 1975 submission of duplicate treatment records, and a March 1976 redundant statement regarding the worsening of his spine disability. A May 1976 VA examination was new and material, but more than a year from the April 1975 denial. The Veteran indicated he wanted to appeal the July 1976 decision, but when he was asked to specify what he was denying, the Veteran failed to reply to the VA. More than a year later, in September 1977, the Veteran provided his next increased rating claim, which was denied in November 1977. There are no pertinent records between 1977 and 1980. The Veteran's next request for an increased rating was provided on November 21, 1995. The November 21, 1995 request for an increased rating for his back claim also noted the Veteran was 100 percent disabled. This appeal for an increased rating was continued after the May 1996 rating decision denial by virtue of an April 1997 spine examination which provided new and material evidence pertinent to the increased rating claim within one year of the May 1996 denial-leaving the decision "open." Several years and hurdles later, the VA provided the Veteran with a 40 percent rating for his low back disability, effective November 21, 1995. Thus, the May 2014 Board decision found that the Veteran's claim for an increased rating for his low back disability had essentially been on appeal from the November 21, 1995 claim. In again applying Rice to the November 1995 claim, the Board finds that a claim for extraschedular TDIU has been pending on appeal from November 21, 1995 as well. The Board again notes that the Veteran was singularly service-connected for his back disability prior to 1997. Merits of the extraschedular TDIU claim The claim for TDIU on appeal is for a period when he did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Nevertheless, it is VA's established policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation, for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In March 2013, the Director of Compensation provided an opinion denying entitlement to extraschedular TDIU. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). As such, the Board is now able to review the decision with regard to entitlement to TDIU prior to April 16, 1998. As noted above, the Veteran has reported that he has not worked a full time since September 1971. SSDI records also provide disability from September 1971, and for at least some period of time, the Veteran was receiving 100 percent Worker's Compensation from a September 1971 work injury. A review of psychiatric records shows that the Veteran had a difficult childhood. This resulted in running away from home at age 11 or 12. The Veteran described both living on the street, and sleeping outside or at his aunt's or a neighbor's house on occasion. At some point, the Veteran was placed in a foster home, where he remained until he was 16 or 17. Due to this, the Veteran's education background is unclear. He has variously indicated he completed the 9th, 10th and 11th grades of formal education. Whatever grade he completed, he was later able to obtain his GED (date unknown). An August 1962 evaluation of the Veteran at age 14 (contained in the SSA records) indicated he had an IQ of 82. Additional records, received after April 16, 1998, but applicable due to the perceived static nature of intelligence, include testing showing that the veteran has "borderline" intelligence. A March 1998 social worker note, in relation to his claim for vocational rehabilitation services, noted that the Veteran was unable to complete serial 7s (adding 7s-7, 14, 28, etc.), and that his verbal communication was at a 7th or 8th grade level. While the social worker was impressed with the Veteran's drive for advancement, she noted that "it seems very unlikely that he will be capable of comprehending the skills necessary for a paralegal or computer science course of study...On the whole, it is doubtful that he will be successful with any educational endeavor requiring average or above-average intellectual processing." SSA records contain a December 1974 neuropsychiatric examination which noted that the Veteran's schizoid personality, when subjected to stress, resulted in abnormal ideas of reference and delusions, attributable to the September 1971 accident. The psychologist found that the Veteran's neuropsychiatric disability was 100 percent disabling. A June 1973 record related to his low back complaints included that there was "a large neuropsychiatric component present." Another June 1973 record showed the Veteran had forward flexion of his spine to 30 degrees. He complained of loss of strength and numbness related to his back disability. It is evident from the record that the Veteran's level of intelligence, combined with his low back disability and psychiatric disability, prevented him from gainful employment from August 28, 1997. Indeed, the Veteran's psychiatric problems are a large feature in his grants for SSDI and Worker's Compensation in the early 1970s. Regarding entitlement to TDIU prior to August 28, 1997, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected back disability (which resulted in pain, occasional bed-rest, and flexion to 30 degrees), combined with his "borderline" intelligence and work history (bread-wrapper and hardware store employee) combined to prevent him from securing and following substantially gainful employment. Therefore, resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU is granted from November 21, 1995, pursuant to 38 C.F.R. § 4.16(b). 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The effective date of November 21, 1995 is assigned because it is the date of receipt of the claim (here: claim for increased benefits for low back disorder and information regarding unemployability). No information or evidence was received in the year prior to November 21, 1995 which could result in finding that it was factually ascertainable that an increase in disability had occurred. No pertinent evidence was received in the year prior to November 21, 1995. ORDER Entitlement to a TDIU from November 21, 1995, pursuant to 38 C.F.R. § 4.16(b), is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs