Citation Nr: 1645207 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 11-11 776A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than August 28, 2008, for the assignment of a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Michael R. Viterna, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is a veteran (the Veteran) who had active duty service from May 1981 to February 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a September 2009 rating decision of the RO in Detroit, Michigan. In May 2012, the Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file. In a decision dated in July 2014, the Board denied this issue. The Veteran appealed that decision to the Veterans Court. In a single-judge decision dated in February 2016, the Veterans Court vacated the Board's decision and remanded this issue back to the Board for additional adjudication. FINDINGS OF FACT 1. The Veteran did not perfect an appeal of the August 2006 rating decision which denied TDIU. 2. The requirements for equitable tolling and/or waiver of the time limit for perfecting an appeal of the August 2006 decision are not met. 3. The earliest pending claim for TDIU is August 28, 2008. 4. The increase in disability warranting TDIU assignment did not occur during the one-year period prior to August 28, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than August 28, 2008, for the assignment of TDIU have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an earlier effective date for the assignment of TDIU. The RO granted an August 2008 TDIU claim in a September 2009 rating decision and made that award effective from the date of the claim (August 28, 2008). However, the Veteran contends that an August 2006 denial of a January 2006 TDIU claim was appealed to the Board and that the award should be based on the date of that claim. 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. For increased rating claims, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the date the claim was received, the increase is effective from the date of the claim. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98; Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). A TDIU claim based on conditions that have already been service-connected is an increased-rating claim. See Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007); Hurd v. West, 13 Vet. App. 449, 451-52 (2000) (applying law governing increased-rating claims to the award of TDIU). All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate 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(a)(1), 4.15 (2016). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). At the time of the August 2006 denial, service connection was in effect for hysterectomy residuals, which were rated at 50 percent, headaches, which were rated at 30 percent, a low back disorder and a urinary disorder, each of which was rated at 20 percent, gastritis and a gall bladder scar, each of which was rated at 10 percent, and a cholecystectomy scar and a scar of the right breast, each of which was noncompensable. The combined rating was 80 percent. The Veteran initiated an appeal of the August 2006 rating decision by filing a timely Notice of Disagreement. See 38 C.F.R. § 20.200 (2016). However, after the Statement of the Case was issued in January 2008, the Veteran had 60 days from the date that document was mailed to perfect an appeal by submission of a VA Form 9 or equivalent, as the one-year period after the August 2006 rating decision had already expired. See 38 C.F.R. § 20.202 (2016). Here, the evidence reflects that the VA Form 9 was received at the RO in August 2008, more than 60 days after the Statement of the Case was sent. Accompanying the Form 9 was a hand-written letter from the Veteran inquiring into the status of her claim. The RO interpreted the untimely correspondence and VA Form 9 as a new claim and the current appeal arises from that claim. Another copy of the same VA Form 9 was received on January 20, 2010. The Board denied this appeal in July 2014 on essentially the same facts. The Veterans Court vacated the Board's July 2014 decision on the bases that the Board did not discuss the doctrine of equitable tolling in finding that the Veteran did not perfect an appeal of the August 2006 rating decision, and that the Board did not discuss whether the requirements for timely submission of a VA Form 9 should otherwise be waived in the Veteran's case. Accordingly, the Board will address these matters. Equitable tolling is to be applied only when circumstances preclude a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). This is consistent with guidance provided by the Supreme Court. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (equitable tolling is allowed in situations where the claimant has actively pursued his/her judicial remedies, but the principles of equitable tolling do not extend to what is at best a garden variety claim of excusable neglect). Equitable tolling may also be appropriate in extraordinary circumstances. The Veterans Court has recognized a three-part test to determine whether extraordinary circumstances justify equitable tolling: (1) the extraordinary circumstance must be beyond the veteran's control, (2) the veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period. McCreary v. Nicholson, 19 Vet. App. 324 (2005). In Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (en banc), the Federal Circuit held that the time limit for appealing a decision of the Board to the Veterans Court was subject to the doctrine of equitable tolling where the claimant's appeal was delayed due to his reliance on a VA benefits officer's statement that she would file the claimant's appeal. At the May 2012 Board hearing, the Veteran reported that she provided a VA Form 9 to her representative in February 2008, which was not associated with the claims file until August 2008. A review of this document shows that there are two dates hand-written on it. January 31, 2008, is written in the box designated for the completion date and February 10, 2008, is written below that box. However, the VA Form 9 contains a VA date stamp indicating that it was received in the VA Mail Room on August 28, 2008. After a review of all of the evidence, the Board finds that the requirements for equitable tolling are not met. With respect to the criterion of mental illness, the Veteran's attorney has recently (July 2016) asserted that a mental illness should be considered in support of equitable tolling. The Board observes that the Veteran has been diagnosed with bipolar disorder. However, in order to obtain the benefit of equitable tolling on the basis of mental illness, it must be shown that the failure to file was the direct result of a mental illness that rendered her incapable of "rational thought or deliberate decision making," or "incapable of handling [her] own affairs or unable to function [in] society." A medical diagnosis alone or vague assertions of mental problems will not suffice. See Barrett v. Principi, 363 F.3d 1316 (2004). The Veteran has made no allegation that she was impaired to the extent contemplated in Barrett. Moreover, if she is to be taken at her word, that she delivered the VA Form 9 to her representative within the time limit, and her representative failed to forward it to VA, this is clear evidence that she was capable of such rational thought and deliberate decision making as was necessary to perform these acts. In addition, the Veteran maintained correspondence with VA on other matters during the period intervening the issuance of the Statement of the Case and the receipt of the VA Form 9 and attended medical examinations (see VBMS record 12/16/2008). This is also probative evidence that she retained the ability for such rational thought and deliberate decision making as was necessary to complete the task at issue here. There is no indication that the Veteran relied on an incorrect statement of a VA official, or that she misfiled the VA Form 9 at the regional office or the Board. In addition, the Board finds that the circumstances which resulted in the delay in filing the VA Form 9 were not beyond the Veteran's control. Again assuming that her testimony is correct, that she submitted the VA Form 9 to her representative prior to the expiration date, and that her representative failed to file the document on time, this is not the type of situation that would warrant equitable tolling as these circumstances were not out of the Veteran's control. She elected to submit the VA Form 9 to her representative rather than to the "Department of Veterans Affairs office from which the claimant received notice of the determination being appealed." See 38 C.F.R. § 20.300 (2016). This situation is not similar to that presented in Bailey as the Veteran's accredited service organization representative is not the equivalent of a VA employee. The Veteran had no reasonable basis to rely on her submission to her representative as satisfying the legal requirements for perfecting an appeal. Moreover, assurances from her representative that the document would be timely filed, if made, are not the equivalent of assurances from a VA employee that all steps necessary to perfect the appeal had been made. The Board finds that the Veteran did not exercise due diligence in preserving her appellate rights, and that a reasonably diligent person, under the same circumstances, would have filed the appeal within the appeal period. As set out above, the regulations stipulate that all appeal documents are to be filed with VA. There is no ambiguity in this requirement. The Veteran is certainly within her rights to request that her representative file the documents on her behalf. However, the failure of the representative to do so in a timely manner must ultimately be imputed to the Veteran. The appellant bears the burden of demonstrating that equitable tolling is warranted. Checo v. Shinseki, 26 Vet. App. 130, 133 (2013). Under the facts presented here, the Board finds that she has not done so. The Board has also considered whether VA has waived the requirement of a VA Form 9 under the decisions in Percy v. Shinseki, 23 Vet. App. 37 (2009) and Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003). In these cases, the Veterans Court held that VA may explicitly or implicitly waive the requirement of a substantive appeal by taking action indicating to a veteran that the appeal was still active. For example, in Percy, the Veterans Court held that by treating a disability rating matter as if it were part of the claimant's timely filed substantive appeal for more than five years, VA waived any objections it might have had to the timeliness of filing. Percy at 46. The Board finds that the current situation is distinguishable from Percy and Gonzalez-Morales. In this case, the RO never treated the Veteran's VA Form 9 as timely. The Veteran was explicitly informed in a September 12, 2008, letter that the VA Form 9 was not timely as it was received more than one year after she was notified of the denial of the claim and more than 60 days after the Statement of the Case was sent. VA also took no other action on the appeal following that notice. VA has therefore clearly not waived any objection as to the timeliness of the filing of the VA Form 9. Subsequent to the August 2006 decision, there is no new claim of entitlement to TDIU until the claim received in August 2008. Accordingly, the earliest date of a pending claim of entitlement to TDIU is August 28, 2008. When determining the appropriate effective date for the assignment of a disability rating, the Board may consider evidence up to one year prior to the date of claim to determine whether an increase in disability occurred during that one-year period. However, if the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper, 10 Vet. App. 125 (1997); Gaston, 605 F.3d at 983. Here, the Veteran has consistently contended that the increase in disability occurred at the time of a December 2005 work injury. This is not within one year of the August 2008 claim. The Veteran was employed as a medical administrator until 2006. She apparently sustained a work-related injury in December 2005 which exacerbated her back pain. She was on medical leave until her physician released her to return to work on February 15, 2006. She did not return to work, but went on unauthorized absence in February 2006. The Veteran filed a workers compensation claim around the same time as her Social Security Disability claim and her initial claim for VA TDIU. An Attending Physician's Report associated with that claim notes that she had a desk job and was advised to complete her course of recuperation and then to resume normal work hours. She was advised to resume work on January 12, 2006, and was thought to be able to perform regular work, described as sitting 8 hours per day, standing 5 minutes, and walking 5 minutes (VBMS record 03/21/2006). The Workers compensation claim was denied in April 2006 as the evidence was not sufficient to establish that a sustained an injury as defined by the Federal Employees' Compensation Act (VBMS record 04/13/2006). An April 17, 2006, letter from University Orthopaedics states that the Veteran may return to work/school without restrictions as of March 31, 2006 (VBMS record 04/18/2006). A letter from a VA physician dated April 24, 2006, notes that, although there may not be any objective evidence on radiological evaluation, the Veteran was experiencing pain in the back, frequent migraine headaches, and anxiety. She was noted to hold a desk job, but sitting that many hours may lead to stiffness and worsening of her condition. It was thought prudent to have her undergo a complete course of physical therapy and massage therapy and a neurological evaluation prior to her return to her employment. The physician thought she should have another 7 weeks. The physician endorsed temporary disability based on subjective symptoms and pending the completion of physical therapy (VBMS record 05/03/2006). A May 8, 2006, letter from the workers compensation office reviewed the report from the VA physician but found this report insufficient to establish the claim as it merely opined that her fall exacerbated her back problems, but did not establish total disability (VBMS record 05/19/2006). A February 2007 SSA decision disapproves the Veteran's claim finding that the condition was not severe enough to keep her from working. The report noted that she had reported being disabled because of migraine headaches, IBS, constipation, low back pain, left leg, left hip, and left foot pain, GERD, PTSD, and rotator cuff tears in both shoulders (VBMS record 02/06/2007). However, the claim was ultimately approved in May 2007, and the finding established the disability date as January 4, 2006 (VBMS record 05/21/2007). An October 2007 letter from the Social Security Administration notes that the Veteran's disability claim had been granted, and informed her of the amount of her benefits (VBMS record 04/10/2008). A VA examination in May 2009 includes a finding that the Veteran would be unable to perform her usual occupation on the basis of her back pain due to the need to change positions at will to alleviate her pain. The history given to the examiner was that her condition was fairly stable until she sustained a fall at work in 2006 that resulted in a twisting injury to her back. The Veteran's representative has also identified an October 2007 letter from the Office of Personnel Management, informing the Veteran that she was deemed disabled and no longer employable. While this document does not appear to be of record, the Board accepts the description of the document as provided by the representative and notes that a similar letter from the Social Security Administration is set out above. However, to the extent that either letter is evidence of unemployability due to service-connected disabilities, these are simply the culmination of a process of application and review which had been ongoing since the Veteran's December 2005 work-related injury. Thus, to the extent that either letter is evidence of unemployability due to service-connected disabilities, the letters themselves do not represent the date of increase in the disability, but the date of recognition by the respective adjudicative bodies of such increase. In order to establish an effective date within the one-year period prior to the claim, it must be factually ascertainable that the increase actually occurred during that period. An increase which occurred prior to the one-year period warrants an effective date corresponding to the date of claim. Therefore, there is no basis for the assignment of an effective date for TDIU any earlier than August 29, 2008. In sum, the Board finds that the Veteran did not perfect an appeal of the August 2006 rating decision which denied TDIU; equitable tolling does not apply; and, there is no other basis to waive the requirements for perfecting an appeal. The Board also finds that the increase in disability warranting TDIU assignment did not occur during the one-year period prior to the August 28, 2008, claim. Accordingly, the Board concludes that an effective date earlier than August 28, 2008, for the grant of TDIU, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist VA's duty to notify was satisfied by a letter in December 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment and examination reports, and private treatment reports identified by the Veteran. The Veteran has submitted pertinent records from the Social Security Administration in support of her claim and she has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2016). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of her claim and she was informed of the information and evidence necessary to substantiate the claim. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. ORDER An effective date earlier than August 28, 2008, for the assignment of TDIU is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs