Citation Nr: 1604664 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-44 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher initial rating for adjustment disorder with mixed anxiety and depressed mood, rated 10 percent disabling from April 16, 2001, to August 21, 2008; 30 percent disabling from August 22, 2008, to September 19, 2010; and 70 percent disabling since September 20, 2010. 2. Entitlement to an initial rating higher than 10 percent for status post-operative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve. 3. Entitlement to an effective date earlier than September 20, 2010, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to May 1955. These matters initially came before the Board of Veterans' Appeals (Board) from September 2009, July 2010, and April 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In the September 2009 decision, a Decision Review Officer (DRO) granted compensation under the provisions of 38 U.S.C.A. § 1151 for adjustment disorder with mixed anxiety and depressed mood and assigned an initial 10 percent disability rating, effective from April 16, 2001, to August 21, 2008, and an initial 30 percent disability rating, effective from August 22, 2008. In the July 2010 decision, the RO granted compensation under the provisions of 38 U.S.C.A. § 1151 for status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve and assigned an initial 10 percent disability rating, effective from April 16, 2001. In October 2010, the RO assigned a 50 percent rating for adjustment disorder with mixed anxiety and depressed mood, effective from October 12, 2010. In the April 2011 decision, the RO assigned a 70 percent rating for adjustment disorder with mixed anxiety and depressed mood and granted a TDIU, both effective from September 20, 2010. The Veteran testified before the Board at an October 2013 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with the file. In October 2013, the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board remanded these matters in December 2013 for further development. The issues of entitlement to higher initial ratings for adjustment disorder with mixed anxiety and depressed mood and status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT An inferred claim for a TDIU was received on April 16, 2001, and the Veteran was unemployable as of that date due to disabilities for which he is in receipt of section 1151 compensation. CONCLUSION OF LAW The criteria for an effective date of April 16, 2001, for the grant of a TDIU are met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015), 3.340, 3.341, 3.400, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As the Board is granting the earliest possible effective date for the award of a TDIU under applicable laws and regulations, the claim is substantiated, and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis The award of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(2) The effective date of an award of increased compensation 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(a),(b). The pertinent provisions of 38 C.F.R. § 3.400 clarify that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. (o)(2) Disability compensation. The date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, 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 execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). VA will grant entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Court has held that entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the underlying claim for benefits. Rice, 22 Vet. App. at 454. In this case, compensation under the provisions of 38 U.S.C.A. § 1151 was granted for status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve by way of the July 2010 rating decision. The Veteran submitted a timely notice of disagreement with the rating assigned in the July 2010 decision in September 2010 and a formal claim for a TDIU (VA Form 21-8940) was received in December 2010. Thus, the Veteran submitted evidence of unemployability in connection with his appeal for a higher initial rating, and a claim for a TDIU was reasonably raised by the record. See Roberson, 251 F.3d at 1378. Under the Court's reasoning in Rice, the inferred claim for a TDIU is considered part of the Veteran's appeal for a higher initial rating. As the Veteran submitted his claim for a TDIU within one year of the grant of section 1151 compensation for status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve, the TDIU claim is part of his initial application for benefits and the Board must determine whether a TDIU is warranted at any time since the effective date for section 1151 benefits (i.e., April 16, 2002). See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). With respect to whether the Veteran met the schedular criteria for a TDIU prior to September 20, 2010, he was in receipt of section 1151 compensation for the following disabilities prior to that date: adjustment disorder with mixed anxiety and depressed mood, rated 10 percent disabling from April 16, 2001, through August 21, 2008, and 30 percent disabling from August 22, 2008, through September 19, 2010; and status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve, rated 10 percent disabling since April 16, 2001. His combined disability rating was 20 percent from April 16, 2001, through August 21, 2008, and 40 percent from August 22, 2008, through September 19, 2010. Hence, the Veteran did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) at any time prior to September 20, 2010. See 38 C.F.R. § 4.16(a). VA policy, however, is to grant a TDIU in all cases where service-connected disabilities/disabilities that are the basis of section 1151 compensation preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board can review the decision of the Director of Compensation Service to make an independent determination. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). In this case, VA treatment records dated from July 1991 to May 2001, a February 1996 "Veteran's Application for Compensation or Pension" form (VA Form 21-526), a May 2001 "Authorization and Consent to Release Information" form (VA Form 21-4142), the Veteran's testimony during a December 2002 DRO hearing, statements from the Veteran dated in March 2003 and May 2004, and an April 2003 "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940) indicate that the Veteran has a Bachelor's Degree in art education and that following service he worked in teaching, counseling, painting, and construction. He stopped working in December 1994 because of the pain associated with a 1991 hernia surgery and he contends that he has been unable to obtain or maintain any type of gainful employment since that time due to the residuals of the surgery. In a May 2004 letter, the Veteran's former employer (a painting company) reported that the Veteran had been employed at the company from April 1993 to December 1994. During that time, he had to be periodically excused from work to receive VA treatment and he had not been employed since he left the company in December 1994. A May 2005 VA examination report reveals that the Veteran underwent a right inguinal herniorrhaphy in 1991 and that he began to develop pain in the area of the surgery shortly thereafter. He was incapacitated by the pain and he quit his job as a painter. He never sought any other gainful employment after quitting his job because he did not think that he could keep a steady job due to the problems related to the hernia surgery. The Veteran continued to report in statements dated in March and July 2006 and February and November 2007, during a February 2008 Board hearing, and during VA psychiatric examinations dated in August 2008 and October 2010 that he stopped working as a construction painter in December 1994 due to residual pain from his hernia surgery, that he applied for early Social Security Administration (SSA) retirement benefits, and that he had been unable to obtain or maintain any type of gainful employment since December 1994 due to pain and depression. The examiners who conducted the August 2008 and October 2010 examinations diagnosed the Veteran as having adjustment disorder with anxiety and depression and assigned Global Assessment of Functioning (GAF) scores of 52 and 55, respectively (indicative of moderate occupational impairment). The August 2008 examiner explained that the Veteran's "anxiety and depression would not in and of themselves preclude gainful employment," but no specific explanation or rationale was provided for this opinion. The Veteran reported on a November 2010 VA Form 21-8940 that he had a Bachelor of Fine Art degree, that he had employment experience as a counselor and painter, and that he had been unable to secure or follow any substantially gainful occupation since December 1994 due to adjustment disorder and nerve entrapment syndrome. He explained that while he had been employed as a painter, he began to find it difficult to climb and dismount ladders and that he experienced pain in his legs, back, and groin when he stepped off ladders. He began to suffer from terrible pain during his work day and it got to the point where he was unable to perform his job. VA mental health treatment notes dated in November 2010 and February 2011 include diagnoses of adjustment disorder with depressed mood, GAF scores of 50 (indicative of serious impairment and an inability to keep a job), and opinions that the Veteran's depression was causing marked occupational impairment and had "made him unemployable." In September 2012, licensed psychologist D. Rawlings, Ph.D. examined the Veteran and reviewed his entire claims file. He explained that the Veteran's medical records established the basis for a psychiatric diagnosis of pain disorder as early as 1994, if not earlier. The Veteran reported that three years after his hernia surgery in 1991, he had to retire in December 1994. His work routinely required him to go up and down ladders and this resulted in shooting pain in his groin and leg. He was exhausted by the pain, began making mistakes, and would forget to complete tasks. Dr. Rawlings noted that the Veteran was referred for a VA psychiatric evaluation in May 2001, that the registered nurse who conducted the evaluation diagnosed the Veteran as having depression due to general medical condition, that no mention was made at that time of the Veteran's chronic pain secondary to his hernia operation, and that the GAF score of 63 (indicative of only mild impairment) which was assigned in May 2001 was a "gross underestimation of the true impairment on that date." The May 2001 examiner had completely missed the Veteran's chronic pain syndrome which had been diagnosed and treated for approximately 10 years and this was the basis for a pain disorder diagnosis. At no time did the Veteran's mental health record ever reflect a psychiatric diagnosis of pain disorder and this diagnosis had been present in every Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association since 1952. Furthermore, Dr, Rawlings explained the definition of pain disorder and its associated symptoms and concluded that by the time the Veteran was evaluated in May 2001, he had experienced all of the associated symptoms for at least 7 years. A diagnosis of pain disorder is a mental health diagnosis and when the Veteran sought treatment in May 2001, the primary diagnosis should have been recorded as pain disorder with both psychological factors and a general medical condition, in addition to a secondary diagnosis of depression. This disability had resulted in the loss of employment, the loss of the Veteran's accustomed lifestyle, the onset of previously non-existent depression, worsened anxiety, and the loss of his social life. Moreover, the GAF score in May 2001 should never have been any higher than 40 (indicative of major impairment and an inability to work). Given the deteriorating status of the Veteran's life events, his GAF score was easily in the 40s during the next 9 years and could have dipped to a score of 31. The Veteran's entire psychiatric record was distorted, his GAF scores were incorrectly inflated from 2001 through 2011, and his medical record was grossly incorrect and did not reflect the presence of a diagnosable psychiatric illness since at least 1994 when VA medical staff recognized the need for chronic pain treatment. Since 1991, the Veteran's pain experience had "beaten him down" to his current state of functioning. He lost his career 3 years following the onset of his chronic pain and he increasingly became the victim of anxiety and depression from which he had never been able to find satisfactory relief. The symptoms of his condition were chronic, had been present in an acute form for the first 6 months following his surgery in 1991, and had been chronic since that time. The severity of the symptoms had worsened between 1991 and 1994, when it became necessary for the Veteran to retire from his chosen field of employment. Despite repeated treatment, his condition continued to worsen and he also experienced a worsening of his symptoms of depression and anxiety from 2001 through 2011. Additionally, Dr. Rawlings reported that the Veteran's work functioning had been nil since 1991 and that his symptoms had become significantly more severe. He was depressed, withdrawn, and easily overwhelmed around people and in crowded situations. He experienced difficulty with concentration and memory, was socially isolated, and had virtually no skills to deal with his chronic pain. Given that his chronic pain syndrome was never successfully treated, his actual GAF score had never been above 50 since 1994 and it should have been no higher than 40 when he received mental health treatment in 2001. His chronic pain disorder resulted in reduced reliability at work due to frequent doctor appointments, reduced productivity in that his work required him to frequently climb up and down ladders, and shooting pains in his groin and legs which produced fatigue and increased anxiety. Also, impairment in concentration, attention, and short term memory was present. These impairments played a significant role in the Veteran's retirement in that he found himself making costly mistakes at work which were noticed by his employer. Parallel with the disturbance in mood and fatigue were increased symptoms of amotivation and anhedonia. These depressive symptoms directly affected the Veteran's ability to initiate action and carry out planned behavior which was essential in a work setting. His chronic sleep impairment set the stage for his difficulties in functioning during the following day. In sum, Dr. Rawlings opined that the Veteran's various symptoms had likely ("more than likely than not") developed to the point of completely disabling him occupationally, effectively precluding him from securing or engaging in a substantially gainful occupation. Thus, the proper rating for his disability was 100 percent due to unemployability since at least 2001. It appeared likely ("more likely than not") that the Veteran's dysfunctional phenomena reached the point at which they were occupationally disabling by the time he was referred for mental health treatment in May 2001 and his level of functioning had reached the point of being unemployable by the date of that treatment. During the period from May 2001 to August 2009, the Veteran was likely ("at least as likely as not") to have been able to engage in daily part time work with a schedule that allowed for down time secondary to his medical and psychiatric problems. Such employment, however, would not have been substantial gainful employment. Specifically, in light of the lack of appropriate treatment for chronic pain disorder since 1994 and the continued deterioration of the Veteran's condition since 2001, he was unable to secure and maintain gainful employment since May 2001. Overall, it was likely ("more than likely than not") that the Veteran's level of functioning reached the point of being unemployable by May 2001. The Veteran reported during the November 2013 hearing that he had a Bachelor's Degree in education and art, that he worked as a teacher for 6 to 7 years (but left because the salary was not good), and that he subsequently worked in construction/painting. He was unable to perform physical labor following his hernia surgery and retired in December 1994 due to pain, impaired concentration, and the need to attend medical appointments. In a May 2015 Memorandum, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director noted that the Veteran reported during the May 2005 VA examination that the pain resulting from his hernia repair surgery caused him to quit being a painter and that he never thereafter pursued employment because he did not think that he could keep a job. A medical opinion rejected his claim and noted that his complaints of pain were subjective. The February 2011 VA outpatient treatment report indicated that the Veteran's depression made him unemployable. Overall, none of the available medical evidence revealed that any of the Veteran's conditions warranted an increased evaluation on a schedular or extra-schedular basis, and there was no overall finding that the Veteran was unemployable under any circumstances prior to September 20, 2010. The totality of the evidence did not support the notion that he was unemployable due solely to residuals of hernia repair. Therefore, the Director concluded that the Veteran was not entitled to an extraschedular TDIU prior to September 20, 2010. In July 2015, vocational counselor R. Baruch, M.S., C.R.C. conducted a telephone interview of the Veteran and reviewed the opinions of Dr. Rawlings and the Director of Compensation Service. She explained that prior to service the Veteran worked as a painter's helper and that he received a Bachelor's Degree in art education following service. He briefly worked for a glass factory, but then obtained employment as a house painter. He also taught art education at a junior high school from approximately 1976 through 1984. He had lived with recurring pain since his 1991 hernia surgery which rendered him with a nerve entrapment syndrome. The pain was significantly worsening in 1994, to the point that he could no longer perform the essential duties of his job. R. Baruch indicated that upon review of the Veteran's medical records, it was quite clear that by 1994 his pain was so severe that he could no longer work and he retired with early SSA retirement benefits. At that time, he was experiencing difficulty bending, stooping, climbing, standing, and sitting for prolonged periods due to pain in his hip and groin running down into his right knee and leg. When getting on and off ladders, he experienced sharp pains in his groin which would shoot down into his right leg. He often had to leave work to see a specialist and took off work at least once a month due to pain and associated symptoms. His evenings were typically spent in bed until the next workday, when the cycle would begin again. He attempted various treatments, but they all proved to be futile. The Veteran reported that he relied on his income and enjoyed his work, but he had no choice other than to take an early retirement in 1994 due to the severity of his pain. His work was extremely physical and was aggravating his symptoms to the point where he could no longer handle his level of pain. Therefore, he retired in 1994. The vocational counselor opined that it was likely ("more likely than not") that the Veteran's disabilities for which he was receiving section 1151 compensation prevented him from securing or following a substantially gainful occupation and that this unemployability began at the time that he filed for SSA retirement benefits in 1994. She reasoned that given the continuity of medical records and interviews with the Veteran, it was clear that he was having a multitude of physical problems associated with the disabilities for which he was receiving section 1151 compensation and that these problems would have rendered him incapable of performing the work of a painter. He could no longer climb ladders, bend, stoop, squat, or stand for prolonged periods of time. When referencing the Selected Characteristics of Occupations published by the Department of Labor, all of these activities were the physical demands of a house painter. The Veteran had hoped to return to work after his hernia surgery, but by 1994 his pain was continuing to escalate and he eventually retired. He could no longer ambulate on work sites or sit for long periods without pain in his knee, leg, and feet. Bending, stooping, climbing, and crawling were all becoming too painful, attention, concentration, and pace were all significantly impaired due to pain and adjustment disorder, and the Veteran's ability to attend to tasks and stay focused were becoming quite compromised. He was leaving work early for appointments and taking frequent breaks due to pain. R. Baruch further explained that the Veteran's limitations even precluded sedentary work, which is defined in the Dictionary of Occupational Titles as work that involves exerting force to 10 pounds occasionally or a negligible amount of force frequently to lift, carry, push, or pull. Although a sedentary job involves significant sitting, a certain amount of standing or walking is often necessary to carry out job duties. Jobs are sedentary if walking and standing are performed occasionally and all other sedentary criteria are met. The Veteran was extremely dedicated and performed a very physical and taxing vocation throughout his adult life. He had no intention of taking early retirement until his pain became so debilitating that he could no longer perform the essential duties of his job. Thus, it was likely ("more likely than not") that the Veteran had been unable to secure and follow substantial competitive employment since 1994, when he applied and received SSA retirement benefits. This opinion was rendered despite any other opinion that the Veteran could engage in work, was based solely on the Veteran's disabilities for which he was receiving section 1151 compensation, and was based on the vocational specialist's experience and expertise as a certified rehabilitation counselor. The September 2012 opinion is based upon an in-person examination of the Veteran and both this opinion and the July 2015 opinion are accompanied by detailed rationales that are based upon a review of the Veteran's records and reported history and which are consistent with the evidence of record. Hence, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The preponderance of the evidence favors a conclusion that prior to September 20, 2010, the Veteran's adjustment disorder with mixed anxiety and depressed mood and the pain associated with his status postoperative right inguinal hernia repair with nerve entrapment syndrome prevented him from securing and following substantially gainful employment. His employment ended in December 1994 due to the symptoms of these disabilities and the need to receive treatment for the disabilities, he has been unemployed since that time, and he has been unable to secure or follow any substantially gainful employment due to the symptoms associated with the disabilities. The competent medical opinions are to the effect that the Veteran has been incapable of gainful employment due to the effects of these disabilities since his employment ended in December 1994. In sum, the evidence reveals that the Veteran has been unemployable since December 1994. As the date that his full time employment ended is prior to the date that his inferred claim for a TDIU was received (April, 16 2001), an effective date of April 16, 2001 for the award of a TDIU is warranted. See 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). This is the earliest possible effect date for the award of a TDIU because it is the effective date of the award of section 1151 benefits for both adjustment disorder with mixed anxiety and depressed mood and status postoperative right inguinal hernia repair with nerve entrapment syndrome. The Veteran has no service-connected disabilities or other disabilities for which he is receiving section 1151 benefits. Hence, the full benefit sought as to this issue is granted. ORDER Entitlement to an effective date of April 16, 2001, for the award of a TDIU is granted. REMAND The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In April 2003 and August 2007, the Veteran submitted signed and completed "Authorization and Consent to Release Information" forms (VA Form 21-4142) for records of treatment for hernia pain and depression from Dr. O'Brian/Omni Medical Group. These records were dated as early as 2001. The AOJ contacted Dr. O'Brian in August 2007 and requested relevant treatment records, but it only requested treatment records dated from January to June 2007. The AOJ has not otherwise attempted to obtain all relevant treatment records from Dr. O'Brian/Omni Medical Group. Thus, a remand is necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a psychiatric disability and residuals of a right inguinal hernia repair (including any neurologic residuals) from Dr. O'Brian/Omni Medical Group dated from April 2000 through the present (see the April 2003 and August 2007 VA Forms 21-4142). All efforts to obtain these records must be documented in the file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims. All such notification must be documented in the file. 2. After conducting any additional indicated development, readjudicate the issues on appeal. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs